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No. 02-658I

INTHE

upreme Cout of thelniteb tateg

STATE OF ALASKA, DEPARTMENT OF ENVIRONMENTAL,

CONSERVATION,

Petitioner,V.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondei_. _"

On Wrlt of Certiorari to the United States ro _ _-__Court of Appeals for the Ninth Circuit -o _ r_m

JOINT APPENDIX eo :_m"" _lb

._ f-"

GREC,-GD. RENKES THEODOREB. OLSON* "Attorney General Solicitor GeneralCAMERONM. LEONARD DEPARTMENTOF JUSTICEAssistant Attorney General Washington, D.C. 20530STATEOFALASKA (202) 514-2217Department of LawP.O. Box 110300 Counsel for RespondentsJuneau, Alaska 9981 l(907) 465-3600

JOHN G. ROBERTS, JR.*LORANE F. HEBERT

HOGAN& HARTSONL.L.P.555 Thirteenth Street,N.W.Washington, D.C. 20004(202) 637,5810

Counselfor Petitioner * Counsel of Record

I I I I I I

PETITIONFOR CERTIORARIFILEDOCTOBER25, 2002CERTIORARIGRANTEDFEBRUARY24, 2003

TABLE OF CONTENTS

PageRelevant Docket Entries from the United States

Court of Appeals for the Ninth Circuit (No.00-70166) ............................................................ 1

Relevant Docket Entries from the United StatesCourt of Appeals for the Ninth Circuit (No.00-70169) ............................................................ 11



Cominco Alaska, Incorporated, Index to theAdministrative Record ........................................ 41

Alaska Department of Environmental Conserva-tion Preliminary Technical Analysis Reportfor Air Quality Control Construction PermitNo. 9932-AC005 (May 4, 1999) ......................... 55

Alaska Department of Environmental Conserva-tion Air Quality Construction Permit, PermitNo. 9932-AC005 (May 4, 1999) ......................... 89

Letter from Anita Frankel, Director, Office ofAir Quality, United States EnvironmentalProtection Agency, Region 10, to TomChapple, Alaska Department of Environ-mental Conservation (July 29, 1999) .................. 96

Memorandum from Brian Renninger, Envir.Engin. Asst., Air Permits Program, State ofAlaska, Department of Environmental Con-servation, to Jim Baumgartner, Supervisor,Construction Permits (Aug. 10, 1999)................. 99

(i)

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ii

TABLE OF CONTENTS--Continued

Page

Alaska Department of Environmental Conserva-tion Final Technical Analysis Report for AirQuality Control Construction Permit No.9932-AC005 (Sept. 1, 1999) ............................... 105

Letter from Anita Frankel, Director, Office ofAir Quality, United States EnvironmentalProtection Agency, Region 10, to TomChapple, Alaska Department of Environ-mental Conservation (Sept. 15, 1999) ................. 1l8

Letter from Anita Frankel, Director, Office ofAir Quality, United States EnvironmentalProtection Agency, Region 10, to TomChapple, Alaska Department of Environ-mental Conservation (Sept. 28, 1999) ................. 121

Letter from Charlotte L. MacCay, SeniorAdministrator, Environmental and Regula-tory Affairs, Cominco Alaska, Inc., to AnitaFrankel, United States Environmental Pro-tection Agency, Region 10 (Oct. 8, 1999) ........... 13l

Memorandum from Charlotte L. MacCay,Senior Administrator, Environmental andRegulatory Affairs, Cominco Alaska, Inc.,to Chuck Findley, United States Environ-mental Protection Agency, Region 10 (Oct.29, 1999) .............................................................. 134

Letter from Chuck Findley, Deputy RegionalAdministrator, United States EnvironmentalProtection Agency, Region 10, to MicheleBrown, Alaska Department of Environ-mental Conservation (Nov. 10, 1999) ................. 136

Letter from John Key, Cominco Alaska, Inc., toChuck Clarke, Regional Administrator,United States Environmental ProtectionAgency, Region 10.............................................. 141

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Page

Letter from Chuck Findley, Deputy RegionalAdministrator, United States Environmental

Protection Agency, Region 10, to MicheleBrown, Alaska Department of Environ-mental Conservation (Dec. 10, 1999) .................. 148

Alaska Department of Environmental Conserva-tion Air Quality Construction Permit, PermitNo. 9932-AC005 (Dec. 10, 1999) ....................... 152

Alaska Department of Environmental Conserva-tion Final Technical Analysis Report for AirQuality Control Construction Permit No.9932-AC005 (Dec. 10, 1999) .............................. 159

Response to Comments, Cominco Alaska, RedDog Mine, Production Rate Increase Project,Air Quality Construction Permit, No. 9932-AC005 .................................................................. 225

Letter from Michele Brown, Alaska Departmentof Environmental Conservation, to ChuckClarke and Chuck Findley, United StatesEnvironmental Protection Agency, Region10 (Jan. 5, 2000) .................................................. 247

Letter from Chuck Findley, Deputy RegionalAdministrator, United States Environmental

Protection Agency, Region 10, to NormanMahoney, Cominco Alaska, Inc. (Feb. 8,2000) .................................................................... 253

Letter from Chuck Findley, Deputy RegionalAdministrator, United States EnvironmentalProtection Agency, Region 10, to MicheleBrown, Alaska Department of Environ-mental Conservation (Feb. 8, 2000) .................... 256

I

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Page

Letter from Chuck Findley, Deputy RegionalAdministrator, United States EnvironmentalProtection Agency, Region 10, to RobertConnery, Holland and Hart (Mar. 7, 2000) ......... 260

Letter from Chuck Findley, Deputy RegionalAdministrator, United States EnvironmentalProtection Agency, Region 10, to NormanMahoney, Cominco Alaska, Inc. (Mar. 7,2000) .................................................................... 264

Memorandum from Michael S. Alushin, Asso-ciate Enforcement Counsel for Air, and Ed-ward E. Reich, Director, Stationary SourceCompliance Division, United States Envi-ronmental Protection Agency, to RegionalCounsel, Regions I-X, Directors, Air Man-agement Divisions, Regions I, V and IX, andDirectors, Air and Waste Management Divi-sions, Regions II-IV, VI-VIII, and X (Dec.14, 1983) .............................................................. 266

Memorandum from Michael S. Alushin, Asso-ciate Enforcement Counsel for Air, and JohnS. Seitz, Director, Stationary Source Com-pliance Division, United States Environ-mental Protection Agency, to Addressees(July 15, 1988) ..................................................... 272

Declaration of Douglas E. Hardesty (May 23,2001) .................................................................... 275

V


Page

The appendix to the petition for certiorari con-tains the following material which is omittedfrom the Joint Appendix:

Appendix A: Opinion of the United StatesCourt of Appeals for the NinthCircuit (July 30, 2002) ....................... l a

Appendix B: Opinion of the United StatesCourt of Appeals for the NinthCircuit (Mar. 27, 2001) ...................... 17a

Appendix C: Order of the United States Courtof Appeals for the Ninth Circuit(Feb. 28, 2002) .................................. 24a

Appendix D: EPA Finding of Noncomplianceand Order (Dec. 10, 1999) ................. 26a

Appendix E: EPA Administrative Order (Feb.8, 2000) .............................................. 38a

Appendix F: EPA Amended AdministrativeOrder (Mar. 7, 2000) ......................... 51a

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

No. 00-70166

STATE OF ALASKA, Department ofEnvironmental Conservation,

Petitioner,V.

UNITED STATES ENVIRONMENTALPROTECTION AGENCY,

Respondent.

DOCKET ENTRIES|

DATE PROCEEDINGS

2/8/00 FILED PETITION FOR REVIEW DOCKETEDCAUSE AND ENTERED APPEARANCES OFCOUNSEL, NOTIF[ED RESPONDENTS OFFILING, SENT PETITIONER CIVIL APPEALSDOCKETING STATEMENT. setting scheduleas follows: petitioners' opening brief is due4/28/00; respondents' brief is due 5/30/00; peti-tioner's optional reply brief is due 6/12/00. [00-70166] (wp)[00-70166]

3/20/00 Filed joint rntn to consolidate (00-70166/70169/70175/70301) set coordinated briefing schedule,and extend deadline for filing of the certified in-dex to record; served 3/17/00. (MOATT viaPROMO) [00-70166, 00-70169, 00-70175, 00-

2

70301] [3873459] (rc) [00-7016600-70169 00-70175 00-70301]

4/4/00 Received Respondent EPA's opposition tomotion for stay and cross-motion to dismiss;served on 4/3/00. (opposition exceeds FRAP lim-its - motion pending - MoAtt) [00-70166, 00-70169, 00-70175, 00-70301] (dl) [00-70166 00-70169 00-70175 00-70301]

4/17/00 Received Cominco Alaska in 00-70169, 00-70175, 00-70301 reply in opposition to motion todismiss, served on 4/14/00 MOATT [00-70166,00-70169, 00-70175, 00-70301] (vt) [00-7016600-70169 00-70175 00-70301]

4/19/00 Received State's opposition to EPA's motion todismiss petitions. (served on 4/14/00 MOATT

[00-70166, 00-70169, 00-70175, 00-703011] (vt)[00-70166 00-70169 00-70175 00-70301]

4/28/00 Received Respondents' reply in support of mtnto dismiss petitions for lack of subject matter ju-risdiction; unopposed mtn of respondents forleave to file an oversized reply in support of mtnto dismiss petition for lack of subject matter ju-risdiction; respondents' ntc of suppl administra-tive action; served on 4/27/00. (MOATT) [00-70166, 00-70169, 00-70175, 00-70301] (rc) [00-70166 00-70169 00-70175 00-70301]

5/'9/00 Received Cominco Alaska opposition to motionto dismiss. (served on 5/8/00 MOATT [00-70166, 00-70169, 00-70175, 00-70301] (vt) [00-70166 00-70169 00-70175 00-70301]

5/11/00 Filed Petitioner State of Alaska surreply inopposition to motion to dismiss along with a mo-tion to allow filing of surreply; served on 5/9/00(MOATT) [00-70166] (wp) [00-70166]

6/1/00 Filed order (Harry PREGERSON, Ferdinand F.FERNANDEZ, Kim M. WARDLAW): Peti-

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tioner the State of Alaska Department of Envi-ronmental Conservation ("ADEC"), petitionerCominco Alaska Incorporated ("Cominco") andrespondents the U.S. Environmental ProtectionAgency, Carol M. Browner and Chuck Clarke's(EPA) 3/20/00 joint motion to consolidate peti-tion 00-70166, 00-70169, 00-70175 and 00-70301 is granted. Petition nos. 00-70166, 00-70169, 00-70175 and 00-70301 are consolidated.Petitioner Cominco's unopposed motion forleave to file an oversized motion for stay isgranted. The Clerk shall file Cominco's 3/20/00motion for stay. Petitioner ADEC's March 31,2000 motion for joinder in Cominco's motion forstay of the EPA's 12/10/99, 2/8/00 and 3/7/00orders pending appeal is granted. Respondents'March 28, 2000 motion for extension of time tofile the response to petitioners' motion for stay isgranted. Respondents' unopposed 4/4/00 motionfor leave to file an oversized opposition to peti-tioners' motion for stay is granted. The Clerkshall file respondents' 4/4/00 opposition to peti-tioners' motion for stay, and respondents cross-motion to dismiss. The Clerk shall also file re-spondents' 4/6/00 addendum to its opposition tothe motion for stay, and respondents' motion todismiss. Petitioner Cominco's unopposed motionto file an oversized reply in support of its motionto dismiss is granted. The Clerk shall file the re-ply received 4/28/00. Petitioner Cominco's mo-tion to file a surreply in opposition to respon-dents' motion to dismiss is granted. The Clerkshall file the surreply rec'd 5/9/00. The Clerkshall file petitioner ADEC's 4/19/00 oppositionto respondents' motion to dismiss. PetitionerADEC's motion to file a surreply in oppositionto respondents' motion to dismiss is granted.The surreply was filed 5/11/00. Petitioner

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ADEC's motion for oral argument is denied. Pe-titioner Cominco's March 20, 2000 motion tostay respondent EPA's 12/10/99, 2/8/00 and3/7/00 orders pending appeal is denied. Respon-dents' 4/4/00 cross-motion to dismiss is denied.The 3/20/00 joint motion of Petitioners ADEC,Cominco and respondent EPA to extend the timeto file the certified index to the admin record isgranted. The certified index to the admin recordis due 6/26/00. Respondents' 4/3/00 motion tostay filing of the certified index to the admin re-cord is denied as moot. The following briefingschedule shall govern these consolidated peti-tions for review: the opening briefs are due6/26/00; the answering brief is due 7/26/00. Re-quests for extension of time will be looked uponwith disfavor. All parties on a side are encour-aged to join in a single brief to the greatest extentpracticable. All briefs shall comply with the pageand type-volume limitations set forth in FRAP32(a)(7). If all parties on a side file a joint brief,these parties may, in accordance with Ninth Cir-cuit Rule 28-4, timely move for enlargement ofsize of 5 monotype pages or 1,400 words. Re-quests for enlargement of size greater than 5pages or 1,400 words will be looked upon withextreme disfavor. MOTION FOR STAY DE-NIED; MOTION TO DISMISS DENIED. [00-70166, 00-70169, 00-70175, 00-70301] (ft) [00-70166 00-70169 00-70175 00-70301]

6/23/00 Received Respondent EPA in 00-70166's Noticeof filing certified index to the Admin. Record,served on 6/22/00 (Casefile) [00-70166] (kc)[00-70166]

6/29/00 Filed original and 15 copies Petitioner State ofAlaska in 00-70166, Petitioner Cominco Alaskain 00-70169, Petitioner Cominco Alaska Inc. in

5

00-70175, Petitioner Cominco Alaska in 00-70301 opening brief ( Informal: n) 57 pages andfive excerpts of record in 2 volumes; served on6/26/00 [00-70166, 00-70169, 00-70175, 00-70301] (je) [00-70166 00-70169 00-70175 00-703011

8/17,100 Filed original and 15 copies respondent EPA in00-70166, 00-70169, 00-70175, 00-70301 in 66pages brief, 5 Exc. in 1 vol; served on 8/16/00.[00-70166, 00-70169, 00-70175, 00-70301] (af)[00-70166 00-70169 00-70175 00-70301]

9/7/00 Filed original and 15 copies State of Alaska,Cominco Alaska, Cominco Alaska Inc., ComincoAlaska's reply brief, ( Informal: no ) 46 pages;with 5 Sup. Exc of Record in 1 volume; servedon 9/5/00. [00-70166, 00-70169, 00-70175, 00-70301] (af) [00-70166 00-70169 00-70175 00-70301]

1/10/01 Filed Order (Deputy Clerk: gb) Petitioner'smotion to expedite and decision on appeal isDENIED. Petitioner's motion to allow longeroral argument is also DENIED. NANA RegionalCorporation, Inc.'s motion for leave to file anamicus letter brief is GRANTED. This letterbrief is hereby submitted. NANA Regional Cor-poration, Inc. shall be notified by mail throughits general counsel, Jacquelyn R. Luke, at 1001E. Benson Blvd., Anchorage, AK 99508(907)265-4148. The Native Village of Kivalina'smotion for leave to file an amicus letter brief isGRANTED. This letter brief is hereby submitted.The Native Village of Kivalina shall be notifiedby mail through its atty and trustee, Mielaael J.Frank, at 1026 West 4th Ave., Ste 201, Anchor-age, AK 99501 (907)276-4244x116) (faxed toPANEL and phoned counsels at 3:00p.m.) [00-

6 i

70166, 00-70169, 00-70175, 00-70301] (af)[00-70166 00-70169 00-70175 00-70301]

1/11/01 FILED CERTIFIED COPY OF ADMINISTRA-TIVE RECORD ON APPEAL: 1 CARTON

CONTAINING 87 DOCUMENTS.(ORIGINAL)[00-70166] [00-70166] (sd)[00-70166]

2/9/01 Received Andrew J. Doyle for Respondent EPAletter dated 2/8/01 re: current event relating tothe Dec 10, 99 prevention of significant deterio-ration construction permit (No.9932-AC005) thatPetitioner State of Alaska, Dept of Environ-mental Conservation issued to Petitioner Comin-

co Alaska, Inc. (with attachment) (faTed toPANEL) [00-70166, 00-70169, 00-70175, 00-70301] (af) [00-7016600-7016900-70175 00-703011

2/13/01 ARGUED AND SUBMITTED TO Stephen R.REINHARDT, Kim M. WARDLAW, Ronald M.GOULD [00-70166, 00-70169, 00-70175, 00-70301] (ss) [00-70166 00-70169 00-70175 00-70301]

3/27/01 Filed Order (FOR PUBLICATION) (Stephen R.REINHARDT, Kim M. WARDLAW, Ronald M.GOULD) Within 60 days of this order, the EPAmay either (1) submit a complete administrativerecord which will allow this Court to review the

justification for the EPA's decision to issue theOrders before us; (2) withdraw the Orders thatare the subjects of these petitions or (3) file anenforcement action, (cite), in the appropriateU.S. District Court ....(Please see casefile forcomplete text) Should the EPA opt to submit theadministrative record rather than to pursue an en-forcement action or to withdraw its Orders, peti-tioners and respondents are ordered to file,within 21 days of such submission, supplementalbriefs, not to exceed 15 pgs, assessing the im-

7

pact, if any, (cite), on the question whether it isthe EPA or ADEC which has the ultimate author-

ity to make BACT determinations. The partiesshall provide notice of the status of these pro-ceedings to this Court within 60 days hereof.Submission of this matter is hereby vacated untilfurther notice by this Court. IT IS SO OR-DERED. [00-70166, 00-70169, 00-70175, 00-70301] (af) [00-70166 00-70169 00-70175 00-703011

6/19/01 Filed original and 15 copies Respondent EPA'ssupplemental brief of 11 pages, served on6/18/01. (per 3/27/01 ct's order) (PANEL) [00-70166, 00-70169, 00-70175, 00-70301] (af) [00-70166 00-70169 00-70175 00-70301]

6/19/01 Filed original and 15 copies Petitioner State ofAlaska, Petitioner Cominco Alaska Incorpo-rated's supplemental brief of 13 pages, served on6/18/01. (per 3/27/01 ct's order) (PANEL) [00-70166, 00-70169, 00-70175, 00-70301] (af) [00-70166 00-70169 00-70175 00-70301]

8/3/01 Filed Order (Stephen R. REINHARDT, Kim M.WARDLAW, Ronald M. GOULD) The AlaskaDept of Environment Conservation's ("ADEC")motion for leave to file a response to the EPA'sHardesty Declaration is DENIED. We furtherorder, however, ADEC and Cominco Alaska,Inc. ("Cominco") to file a response to theHardesty Declaration that states whether theyagree that the material provided by the EPA anddescribed in the Hardesty Declaration constitutesthe complete administrative record in this pro-ceedings as both a factual and legal matter. IfADEC and Cominco contend that the materials

described in the Hardesty Declaration do notconstitute a complete administrative record, theyare further ordered to provide legal authority for

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this proposition and evidence that additional ma-terial exists. In addition, they are ordered to pro-vide legal authority for any proposed form of re-lief, such as discovery, they may seek to remedyany asserted failure by the EPA to provide thecomplete administrative record. ADEC andCominco are further ordered to file their re-sponses or a combined response within 14 daysof the date hereof. The EPA may file a responsewithin 10 days thereafter. IT IS SO ORDERED.[00-70166, 00-70169, 00-70175, 00-70301] (af)[00-70166 00-7016'9 00-70175 00-70301]

2/28/02 Filed Order (Stephen R. REINHARDT, Kim M.WARDLAW, Ronald M. GOULD) Having con-sidered the recent submissions of the partiesagreeing to the factual record on appeal and thebrfs filed beginning in 6/2000 (almost two yrsago), we have determined that supp briefingwould be of assistance in the determination ofthe cause. Therefore, it is ORDERED that eachside file a supp brf not to exceed 25 pgs within28 days of the date hereof on the following ques-tion: whether it is the state of Alaska (throughADEC) or the EPA that bears the ultimate legalauthority and responsibility under the Clean AirAct to determine whether an individual Preven-tion of Significant Deterioration permit issued byAlaska pursuant to its State Implementation Plan(SIP) meets the requirements of the Clean AirAct or the SIP. If any party desires additionaloral argument in this matter, it should file a re-quest, along with a brf statement of the reasons itbelieves additional argument is necessary. It is soORDERED. (served PANEL; phoned and faxedto csls at 3:00p.m.; c.c. Front Counter) [00-70166, 00-70169, 00-70175, 00-70301] (af) [00-70166 00-70169 00-70175 00-70301]

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3/28/02 Filed Original and 15 copies of RespondentEPA's Supplemental brief of 25 pages pursuantto ct's order of 2/28/02; served on 3/27/02.(Fedex to PANEL) [00-70166, 00-70169, 00-70175, 00-70301] (af) [00-70166 00-70169 00-70175 00-70301]

3/29/02 Filed Original and 15 copies Petitioner ComincoAlaska Incorporated's supplemental brief of 25pages, served on 3/28/02. (Fedex to PANEL)[00-70166, 00-70169, 00-70175, 00-70301] (af)[00-70166 00-70169 00-70175 00-70301]

4/1/02 Filed original and 15 copies Petitioner State ofAlaska in 00-70166 supplemental brief of 10pages, served on 3/28/02. (Fedex to PANEL)[00-70166, 00-70169, 00-70175, 00-70301] (af)[00-70166 00-70169 00-70175 00-70301]

7/30/02 Filed Order (Stephen R. REINHARDT, Kim M.WARDLAW, Ronald M. GOULD) This cs ishereby resubmitted as of the date of this order.[00-70166, 00-70169, 00-70175, 00-70301] (af)[00-70166 00-70169 00-70175 00-70301]

7/30/02 Case resubmitted on this date to Stephen R.REINHARDT, Kim M. WARDLAW, Ronald M.

GOULD. (See previous deferral of submission.)Order filed: 7/30/02. [00-70166, 00-70169, 00-70175, 00-70301] (a0 [00-70166 00-70169 00-70175 00-70301]

7/30/02 FILED OPINION: DENIED. (Terminated on theMerits after Oral Hearing; Enforced; Written,Signed, Published. Stephen R. REINHARDT;Kim M. WARDLAW, author; Ronald M.GOULD.) FILED AND ENTERED JUDG-MENT. [00-70166, 00-70169, 00-70175, 00-70301] (af) [00-70166 00-70169 00-70175 00-70301]

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9/23/02 MANDATE ISSUED [00-70166, 00-70169, 00-70175, 00-70301] (af) [00-70166 00-70169 00-70175 00-70301]

11/4/02 Received notice from Supreme Court: petitionfor certiorari filed on 10/25/02 and placed on thedocket 10/31/02; Supreme Court No. 02-658.(CASEFILES) [00-70166, 00-70169, 00-70175,00-70301] (af) [00-70166 00-70169 00-7017500-70301 ]

2/28/03 Received notice from Supreme Court, petitionfor certiorari GRANTED on 2/24/03. SupremeCourt No. 02-658. (faxed to PANEL) (re-entered) (af) [00-70166 00-70169 00-70175 00-703011

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No. 00-70169

TECK COMINCO ALASKA INCORPORATED,

Petitioner,V.

UNITED STATES ENVIRONMENTALPROTECTION AGENCY,

Respondent.

DOCKET ENTRIES

DATE PROCEEDINGS

2/8/00 FILED PETITION FOR REVIEW; DOCKETEDCAUSE AND ENTERED APPEARANCES OFCOUNSEL. NOTIFIED RESPONDENTS OF

FILING. Setting schedule as follows: petitioners'opening brief is due 5/1/00; respondents' brief isdue 5/31/00; petitioner's optional reply brief isdue within fourteen days from service of the an-swering brief. [00-70169] (dl) [00-70169]

3/20/00 Filed joint mtn to consolidate (00-70166/70169/70175/70301) set coordinated briefingschedule, and extend deadline for filing of thecertified index to record; served 3/17/00.(MOATT via PROMO) [00-70166, 00-70169,00-70175, 00-70301] [3873459] (rc) [00-7016600-70169 00-70175 00-70301]

4/4/00 Received Respondent EPA's opposition tomotion for stay and cross-motion to dismiss;

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served on 4/3/00. (opposition exceeds FRAP lim-its - motion pending - MoAtt) [00-70166, 00-70169, 00-70175, 00-70301] (dl) [00-70166 00-70169 00-70175 00-70301]

4/6/00 Received Respondent EPA's addendum toopposition to petitioner's motion for stay andcross-motion to dismiss; served on 4/5/00.(MoAtt) [00-70166, 00-70169, 00-70175, 00-70301] (dl) [00-70166 00-70169 00-70175 00-703011


4/19/00 Received State's opposition to EPA'S motion todismiss petitions. (served on 4/14/00 MOATT[00-70166, 00-70169, 00-70175, 00-70301] (vt)[00-70166 00-70169 00-70175 00-70301]

4/28/00 Received Respondents' reply in support of mtnto dismiss petitions for lack of subject matter ju-risdiction; unopposed mtn of respondents forleave to file an oversized reply in support of mtnto dismiss petition for lack of subject matter ju-risdiction; respondents' ntc of suppl administra-tive action; served on 4/27/00. (MOATT) [00-70166, 00-70169, 00-70175, 00-70301] (rc) [00-70166 00-70169 00-70175 00-70301]

5/9/00 Received Cominco Alaska opposition to motionto dismiss. (served on 5/8/00 MOATT [00-70166, 00-70169, 00-70175, 00-70301] (vt) [00-70166 00-70169 00-70175 00-70301]

6/1/00 Filed order ( Harry PREGERSON, Ferdinand F.FERNANDEZ, Kim M. WARDLAW ): Peti-tioner the State of Alaska Department of Envi-ronmental Conservation ("ADEC"), petitioner

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Cominco Alaska Incorporated ("Cominco") andrespondents the U.S. Environmental ProtectionAgency, Carol M. Browner and Chuck Clarke's(EPA) 3/20/00 joint motion to consolidate peti-tion 00-70166, 00-70169, 00-70175 and 00-70301 is granted. Petition nos. 00-70166, 00-70169, 00-70175 and 00-70301 are consolidated.Petitioner Cominco's unopposed motion forleave to file an oversized motion for stay isgranted. The Clerk shall file Cominco's 3/20/00motion for stay. Petitioner ADEC's March 31,2000 motion for joinder in Cominco's motion forstay of the EPA's 12/10/99, 2/8/00 and 3/7/00orders pending appeal is granted. Respondents'March 28, 2000 motion for extension of time tofile the response to petitioners' motion for stay isgranted. Respondents' unopposed 4/4/00 motionfor leave to file an oversized opposition to peti-tioners' motion for stay is granted. The Clerkshall file respondents' 4/4/00 opposition to peti-tioners' motion for stay, and respondents cross-motion to dismiss. The Clerk shall also file re-spondents' 4/6/00 addendum to its opposition tothe motion for stay, and respondents' motion todismiss. Petitioner Cominco's unopposed motionto file an oversized reply in support of its motionto dismiss is granted. The Clerk shall file the re-ply received 4/28/00. Petitioner Cominco's mo-tion to file a surreply in opposition to respon-dents' motion to dismiss is granted. The Clerkshall file the surreply rec'd 5/9/00. The Clerkshall file petitioner ADEC's 4/19/00 oppositionto respondents' motion to dismiss. PetitionerADEC's motion to file a surreply in oppositionto respondents' motion to dismiss is granted. Thesurreply was filed 5/11/00. Petitioner ADEC'smotion for oral argument is denied. PetitionerCominco's March 20, 2000 motion to stay re-

t__I

14spondent EPA's 12/10/99, 2/8/00 and 3/7/00 or-ders pending appeal is denied. Respondents'4/4/00 cross-motion to dismiss is denied. The i3/20/00 joint motion of Petitioners ADEC, !Cominco and respondent EPA to extend the timeto file the certified index to the admin record isgranted. The certified index to the admin recordis due 6/26/00. Respondents' 4/3/00 motion tostay filing of the certified index to the admin re-cord is denied as moot. The following briefingschedule shall govern these consolidated peti-tions for review: the opening briefs are due6/26/00; the answering brief is due' 7/26/00. Re-quests for extension of time will be looked uponwith disfavor. All parties on a side are encour-aged to join in a single brief to the greatest extentpracticable. All briefs shall comply with the pageand type-volume limitations set forth in FRAP32(a)(7). If all parties on a side file a joint brief,these parties may, in accordance with Ninth Cir-cuit Rule 28-4, timely move for enlargement ofsize of 5 monotype pages or 1,400 words. Re-quests for enlargement of size greater than 5pages or 1,400 words will be looked upon withextreme disfavor. MOTION FOR STAY DE-NIED; MOTION TO DISMISS DENIED. [00-70166, 00-70169, 00-70175, 00-70301] (ft) [00-70166 00-70169 00-70175 00-70301]

6/29/00 Filed original and 15 copies Petitioner State ofAlaska in 00-70166, Petitioner Cominco Alaskain 00-70169, Petitioner Cominco Alaska Inc. in00-70175, Petitioner Cominco Alaska in 00-70301 opening brief ( Informal: n) 57 pages andfive excerpts of record in 2 volumes; served on6/26/00 [00-70166, 00-70169, 00-70175, 00-70301] (je) [00-70166 00-70169 00-70175 00-70301]

15

8/17/00 Filed original and 15 copies respondent EPA in00-70166, 00-70169, 00-70175, 00-70301 in 66

• pages brief, 5 Exc. in 1 vol; served on 8/16/00.[00-70166, 00-70169, 00-70175, 00-70301] (at)[00-70166 00-70169 00-70175 00-70301]

9/7/00 Filed original and 15 copies State of Alaska,Cominco Alaska, Cominco Alaska Inc., ComincoAlaska's reply brief, ( Informal: no ) 46 pages;with 5 Sup. Exc of"Record in 1 volume; servedon 9/5/00. [00-70166, 00-70169, 00-70175, 00-70301] (af) [00-70166 00-70169 00-70175 00-70301]

1/10/01 Filed Order (Deputy Clerk: gb) Petitioner'smotion to expedite and decision on appeal isDENIED. Petitioner's motion to allow longeroral argument is also DENIED. NANA RegionalCorporation, Inc.'s motion for leave to file anamicus letter brief is GRANTED. This letter

brief is hereby submitted. NANA Regional Cor-poration, Inc. shall be notified by mail throughits general counsel, Jacquelyn R. Luke, at 1001E. Benson Blvd., Anchorage, AK 99508(907)265-4148. The Native Village of Kivalina'smotion for leave to file an amicus letter brief is

GRANTED. This letter brief is hereby submitted.The Native Village of Kivalina shall be notifiedby mail through its atty and trustee, Michael J.Frank, at 1026 West 4th Ave., Ste 201, Anchor-age, AK 99501 (907)276-4244x116) (faxed toPANEL and phoned counsels at 3:00p.m.) [00-70166, 00-70169, 00-70175, 00-70301] (af) [00-70166 00-70169 00-70175 00-70301]


CONTAINING 87 DOCUMENTS.(ORIGINAL)[00-70166][00-70166](sd)[00-70166]

L

1(5

2/9/01 Received Andrew i. Doyle for Respondent EPAletter dated 2/8/01 re: current event relating to !the Dec 10, 99 prevention of significant deterio-ration construction permit (No.9932-AC005) thatPetitioner State of Alaska, Dept of Environ- imental Conservation issued to Petitioner Comin-co Alaska, Inc. (with attachment) (faxed toPANEL) [00-70166, 00-70169, 00-70175, 00-70301] (af) [00-7016600-7016900-70175 00-70301]

2/13/01 ARGUED AND SUBMITTED TO Stephen R.REINHARDT, Kim M. WARDLAW, Ronald M.GOULD [00-70166, 00-70169, 00-70175, 00-70301] (ss) [00-70166 00-70169 00-70175 00-703011

3/27/01 Filed Order (FOR PUBLICATION) (Stephen R.REINHARDT, Kim M. WARDLAW, Ronald M.GOULD) Within 60 days of this order, the EPAmay either (1) submit a complete administrativerecord which will allow this Court to review thejustification for the EPA's decision to issue theOrders before us; (2) withdraw the Orders thatare the subjects of these petitions or (3) file anenforcement action, (cite), in the appropriateU.S. District Court ....(Please see casefile forcomplete text) Should the EPA opt to submit theadministrative record rather than to pursue an en-forcement action o1:to withdraw its Orders, peti-tioners and respondents are ordered to file,within 21 days of such submission, supplementalbriefs, not to exceed 15 pgs, assessing the im-pact, if any, (cite), on the question whether it isthe EPA or ADEC which has the ultimate author-ity to make BACT determinations. The partiesshall provide notice of the status of these pro-ceedings to this Court within 60 days hereof.Submission of this matter is hereby vacated until

17

further notice by this Court. IT IS SO OR-DERED. [00-70166, 00-70169, 00-70175, 00-70301] (a0 [00-3'016600-7016900-70175 00-70301]

6/19/01 Filed original and 115copies Respondent EPA'ssupplemental brief" of 11 pages, served on6/18/01. (per 3/27/01 ct's order) (PANEL) [00-70166, 00-70169, 00-70175, 00-70301] (af) [00-70166 00-70169 00-.70175 00-70301]

6/19/01 Filed original and 15 copies Petitioner State ofAlaska, Petitioner Cominco Alaska Incorpo-rated's supplemental brief of 13 pages, served on6/18/01. (per 3/27/01 ct's order) (PANEL) [00-70166, 00-70169, 01)-70175, 00-70301] (af) [00-70166 00-70169 00-70175 00-70301]

8/3/01 Filed Order (Stephen R. REINHARDT, Kim M.WARDLAW, Ronald M. GOULD) The AlaskaDept of Environment Conservation's ("ADEC")motion for leave to file a response to the EPA'sHardesty Declaration is DENIED. We furtherorder, however, ADEC and Cominco Alaska,Inc. ("Cominco") to file a response to theHardesty Declaration that states whether theyagree that the material provided by the EPA anddescribed in the Hardesty Declaration constitutesthe complete administrative record in this pro-ceedings as both a factual and legal matter. IfADEC and Cominco contend that the materialsdescribed in the Hardesty Declaration do notconstitute a complete; administrative record, theyare further ordered to provide legal authority forthis proposition and ,evidence that additional ma-terial exists. In addition, they are ordered to pro-vide legal authority for any proposed form of re-lief, such as discovery, they may seek to remedyany asserted failure by the EPA to provide thecomplete administrative record. ADEC and

L

18

Cominco are further ordered to file their re-sponses or a combined response within 14 daysof the date hereo£ The EPA may file a responsewithin 10 days thereafter. IT IS SO ORDERED.[00-70166, 00-70169, 00-70175, 00-70301] (af)[00-70166 06-70169 00-70175 00-70301]

2/28/02 Filed Order (Stephen R. REINHARDT, Kim M.WARDLAW, Ronald M. GOULD,) Having con-sidered the recent submissions of the parties iagreeing to the factual record on appeal and thebrfs filed beginning in 6/2000 (almost two yrsago), we have determined that supp briefingwould be of assistance in the determination ofthe cause. Therefi_re, it is ORDERED that eachside file a supp brf not to exceed 25 pgs within28 days of the date hereof on the following ques-tion: whether it is the state of Alaska (throughADEC) or the EPA that bears the ultimate legalauthority and responsibility under the Clean AirAct to determine whether an individual Preven-tion of Significant: Deterioration permit issued byAlaska pursuant to its State Implementation Plan(SIP) meets the requirements of the Clean AirAct or the SIP. If any party desires additionaloral argument in this matter, it should file a re- iquest, along with a brf statement of the reasons itbelieves additional argument is necessary. It is so _ORDERED. (served PANEL; phoned and faxed !to csls at 3:00p.m.; c.c. Front Counter) [00-70166, 00-70169, 00-70175, 00-70301] (af) [00-70166 00-70169 00-70175 00-70301] i

3/28/02 Filed original and 15 copies of Respondent :EPA's Supplemental brief of 25 pages pursuantto ct's order of 2/28/02; served on 3/27/02. i(Fedex to PANEL) [00-70166, 00-70169, 00- ,_.

70175, 00-70301t (af) [00-70166 00-70169 00- i.70175 00-70301] _

19

3/29/02 Filed Original and t5 copies Petitioner ComincoAlaska Incorporated's supplemental brief of 25pages, served on 3/28/02. (Fedex to PANEL)[00-70166, 00-70169, 00-70175, 00-70301] (af)[00-70166 00-70169 00-70175 00-70301]

4/1/02 Filed Original and 15 copies Petitioner State ofAlaska in 00-70166 supplemental brief of 10pages, served on 3/128/02. (per 2/28/02 order ofthe ct) (PANEL) [00-70166, 00-70169, (af) [00-70169 00-70175 00-70301]

4/1/02 Filed original and 15 copies Petitioner State ofAlaska in 00-70166 supplemental brief of 10pages, served on 3/28/02. (Fedex to PANEL)[00-70166, 00-70169, 00-70175, 00-70301] (af)[00-70166 00-70169 00-70175 00-70301]


7/30/02 Case resubmitted on this date to Stephen R.REINHARDT, Kim M. WARDLAW, Ronald M.GOULD. (See previous deferral of submission.)Order filed: 7/30/02. [00-70166, 00-70169, 00-70175, 00-70301] (at) [00-70166 00-70169 00-70175 00-70301]

7/30/02 FILED OPINION: DENIED. (Terminated on theMerits after Oral Hearing; Enforced; Written,Signed, Published. Stephen R. REINHARDT;Kim M. WARDLAW, author; Ronald M.GOULD.) FILED AND ENTERED JUDG-MENT. [00-70166, 00-70169, 00-70175, 00-70301] (af) [00-70166 00-70169 00-70175 00-70301]

20

9/23/02 MANDATE ISSUED [00-70166, 00-70169, 00-70175, 00-70301] (at) [00-70166 00-70169 00-

70175 00-70301] i11/4/02 Received notice from Supreme Court: petitionfor certiorari filed on 10/25/02 and placed on thedocket 10/31/02; Supreme Court No. 02-658.(CASEFILES) [00-70166, 00-70169, 00-70175,00-70301] (af) [00-70166 00-70169 00-7017500-70301]

2/28/03 Received notice from Supreme Court, petitionfor certiorari GRANTED on 2/24/03. SupremeCourt No. 02-658. (faxed to PANEL) (re-entered) (a0 [00-70166 00-70169 00-70175 00-70301]

r'-

21


No. 00-7()175

TECK COMINCO ALASKA INCORPORATEDPetitioner,

V.

UNITED STATES ENVIRONMENTALPROTECTION AGENCY, '""

RespondS,

DOCKET ENTRIES ,:¢:_

DATE PROCEEDINGS -_';_i

2/15/00 FILED PETITION FOR REVIEW DO_EDCAUSE AND ENTERED APPEARAN_ OFCOUNSEL, NOTIFIED RESPONDEd!! OF

FILING, SENT PETITIONER CWIL _SDOCKETING STATEMENT. setting _ule

• " • ' ias follows: petltlOn,ers open ng brie_:due5/5/00; respondents brief is due 6/5_ti-tioner s optional reply brief is due 6/1__-70175] (vt) [00-70175] :_:

3/20/00 Filed joint mtn to consolidate (0_,66/70169/70175/70301) set coordinated _ng

schedule, and extend deadline for filin'_e

certified index to record; served X'_ ":.(MOATT via PROMO) [00-70166,00-70175, 00-70301] [3873459] (rc)[_ !'_

00-70169 00-70175 00-70301]

22

4/4/00 Received Respondent EPA's opposition tomotion for stay and cross-motion to dismiss;served on 4/3/00. (opposition exceeds FRAP lim-its - motion pending - MoAtt) [00-70166, 00-70169, 00-70175, 00-70301] (dl) [00-70166 00-70169 00-70175 00-70301]

4/6/'00 Received Respondent EPA's addendum toopposition to petitioner's motion for stay andcross-motion to dismiss; served on 4/5/00.(MoAtt) [00-70166, 00-70169, 00-70175, 00-70301] (dl) [00-70166 00-70169 00-70175 00-70301]

4/17/00 Received Cominco Alaska in 00-70169, 00-70175, 00-70301 reply in opposition to motion todismiss, served on 4/14/00 MOATT [00-70166,

00-70169, 00,70175, 00-70301] (vt) [0(}-70166 I00-70169 00-70175 00-70301] i

i

4/19/00 Received State's opposition to EPA's motion todismiss petitions. (served on 4/14/00 MOATT[00-70166, 00-70169, 00-70175, 00-70301] (vt) i[00-70166 00-70169 00-70175 00-70301] i

4/28/00 Received Respondents' reply in support of mtn _to dismiss petitions for lack of subject matter ju- [risdiction; unopposed mtn of respondents for tleave to file an oversized reply in support of mtn

!

to dismiss petition for lack of subject matter ju- !risdiction; respondents' ntc of suppl administra- itive action; served on 4/27/00. (MOATT) [00- i70166, 00-70169, 00-70175, 00-70301] (rc) [00- iL70166 00-70169 00-70175 00-70301]

5/9/00 Received Cominco Alaska opposition to motion ito dismiss. (served on 5/8/00 MOATT [00- i70166, 00-70169, 00-70175, 00-70301] (vt) [00- !70166 00-70169 00-70175 00-70301 ] i

6/1/00 Filed order ( Han:y PREGERSON, Ferdinand F. iii

FERNANDEZ, Kim M. WARDLAW ): Peti-

m

23

tioner the State of Alaska Department of Envi-ronmental Conservation ("ADEC"), petitionerCominco Alaska Incorporated ("Cominco") andrespondents the U.S. Environmental ProtectionAgency, Carol M. Browner and Chuck Clarke's(EPA) 3/20/00 joint motion to consolidate peti-tion 00-70166, 00-70169, 00-70175 and 00-70301 is granted. Petition nos. 00-70166, 00-70169, 00-70175 and 00-70301 are consolidated.Petitioner Cominco's unopposed motion forleave to file an oversized motion for stay isgranted. The Clerk shall file Cominco's 3/20/00motion for stay. Petitioner ADEC's March 31,2000 motion forjoinder in Cominco's motion forstay of the EPA's 12/10/99, 2/8/00 and 3/7/00orders pending appeal is granted. Respondents'March 28, 2000 motion for extension of time tofile the response to petitioners' motion for stay isgranted. Respondents' unopposed 4/4/00 motionfor leave to file an oversized opposition to peti-tioners' motion for stay is granted. The Clerkshall file respondents' 4/4/00 opposition to peti-tioners' motion for stay, and respondents cross-motion to dismiss. The Clerk shall also file re-spondents' 4/6/00 addendum to its opposition tothe motion for stay, and respondents' motion todismiss. Petitioner Cominco's unopposed motionto file an oversized reply in support of its motionto dismiss is granted. :['heClerk shall file the re-ply received 4/28/00. Petitioner Cominco's mo-tion to file a surreply in opposition to respon-dents' motion to dismiss is granted. The Clerkshall file the surreply rec'd 5/9/00. The Clerkshall file petitioner ADEC's 4/19/00 oppositionto respondents' motion to dismiss. PetitionerADEC's motion to file a surreply in oppositionto respondents' motion to dismiss is granted. Thesurreply was filed 5/11/00. Petitioner ADEC's

24

motion for oral argument is denied. PetitionerCominco's March 20, 2000 motion to stay re-spondent EPA's 12/10/99, 2/8/00 and 3/7/00 or-ders pending appeal is denied. Respondents'4/4/00 closs-motion to dismiss is denied. The3/20/00 joint motion of Petitioners ADEC,Cominco and respondent EPA to extend the timeto file the certified index to the admin record isgranted. The certified index to the admin recordis due 6/26/00. Respondents' 4/3/00 motion tostay filing of the certified index to the admin re-cord is denied as moot. The following briefingschedule shall govern these consolidated peti-tions for review: the opening briefs are due6/26/00; the answering brief is due 7/26/00. Re-quests for extension of time will be looked uponwith disfavor. All parties on a side are encour-aged to join in a single brief to the greatest extentpracticable. All briefs shall comply with the pageand type-volume limitations set forth in FRAP32(a)(7). If all parties on a side file a joint brief,these parties may, in accordance with Ninth Cir-cuit Rule 28-4, timely move for enlargement ofsize of 5 monotype pages or 1,400 words. Re-quests for enlargement of size greater than 5pages or 1,400 words will be looked upon withextreme disfavor. MOTION FOR STAY DE-NIED; MOTION TO DISMISS DENIED. [00-70166, 00-70169, 00-70175, 00-70301] (ft) [00-70166 00-70169 00-70175 00-70301]

6/29/00 Filed original and 15 copies Petitioner State ofAlaska in 00-70166, Petitioner Cominco Alaskain 00-70169, Petitioner Cominco Alaska Inc. in00-70175, Petitioner Cominco Alaska in 00-70301 opening brief ( Informal: n) 57 pages andfive excerpts of record in 2 volumes; seB'ed on6/26/00 [00-70166, 00-70169, 00-70175, 00-

25

703011 (je)[00-70166 00-70169 00-70175 00-70301]

8/17/00 Filed original and 1'; copies respondent EPA in00-70166, 00-70169, 00-70175, 00-70301 in 66pages brief, 5 Exc. in 1 vol; served on 8/16/00.[00-70166, 00-70169, 00-70175, 00-70301] (af)[00-70166 00-70169 00-70175 00-70301]

9/7/00 Filed original and 15 copies State of Alaska,Cominco Alaska, Cominco Alaska Inc., ComincoAlaska's reply brief, ( Informal: no ) 46 pages;with 5 Sup. Exc of Record in 1 volume; servedon 9/5/00. [00-7016({, 00-70169, 00-70175, 00-70301] (af) [00-70166 00-70169 00-70175 00-70301]

12/13/00 Received Cominco Alaska's additional citations;served on 12/12/00. (RECORDS FOR MERITPANEL) [00-70166, 00-70169, 00-70175, 00-70301] (af) [00-70166 00-70169 00-70175 00-70301]

1/10/01 Filed Order (Deputy Clerk: gb) Petitioner'smotion to expedite and decision on appeal isDENIED. Petitioner's motion to allow longeroral argument is also DENIED. NANA RegionalCorporation, Inc.'s motion for leave to file anamicus letter brief is GRANTED. This letterbrief is hereby submitted. NANA Regional Cor-poration, Inc. shall be notified by mail throughits general counsel, Jacquelyn R. Luke, at 1001E. Benson Blvd., Anchorage, AK :99508(907)265-4148. The Native Village of Kivalina'smotion for leave to file an amicus letter brief isGRANTED. This letter brief is hereby su_tted.The Native Village of Kivalina shall be nOtifiedby mail through its atty and trustee, Mi¢!l:aelJ.Frank, at 1026 West 4th Ave., Ste 201, _hor-age, AK 99501 (907)276-4244x116) (f_ toPANEL and phoned counsels at 3:00p.m;}_--[00-

.i._

.:_)111 I

26;

70166, 00-70169, 00-70175, 00-70301] (at) [00-70166 00-70169 00-70175 00-70301]



2/9/01 Received Andrew J. Doyle for Respondent EPAletter dated 2/8/01 re: current event relating tothe Dec 10, 99 prevention of significant deterio-ration construction permit (No.9932-AC005) thatPetitioner State of Alaska, Dept of Environ-mental Conservation issued to Petitioner Comin-

co Alaska, Inc. (with attachment) (faxed toPANEL) [00-70166, 00-70169, 00-70175, 00-70301] (af) [00-7016600-7016900-70175 00-70301]

2/13/01 ARGUED AND SUBMITTED TO Stephen R.REINHARDT, Kim M. WARDLAW, Ronald M.GOULD [00-70166, 00-70169, 00-70175, 00-70301] (ss) [00-70166 00-70169 00-70175 00-70301]

3/27/01 Filed Order (FOR PUBLICATION) (Stephen R.REINHARDT, Kim M. WARDLAW, Ronald M.

GOULD) Within 6;0 days of this order, the EPAmay either (1) submit a complete administrativerecord which will allow this Court to review the

justification for the EPA's decision to issue theOrders before us; (2) withdraw the Orders thatare the subjects of these petitions or (3) file anenforcement action, (cite), in the appropriateU.S. District Court ....(Please see casefile forcomplete text) Should the EPA opt to submit theadministrative record rather than to pursue an en-forcement action or to withdraw its Orders, peti-tioners and respondents are ordered to file,within 21 days of such submission, supplemental ._briefs, not to exceed 15 pgs, assessing the im-

k

27

pact, if any, (cite), on the question whether it isthe EPA or ADEC which has the ultimate author-ity to make BACT determinations. The partiesshall provide notice ,of the status of these pro-ceedings to this Court within 60 days hereof.Submission of this matter is hereby vacated untilfurther notice by this Court. IT IS SO OR-DERED. [00-70166, 00-70169, 00-70175, 00-70301] (af) [00-7016600-7016900-7017500-70301]

6/19/01 Filed original and 15 copies Respondent EPA'ssupplemental brief of 11 pages, served on6/18/01. (per 3/27/01 ct's order) (PANEL) [00-70166, 00-70169, 00-'70175, 00-70301] (af) [00-70166 00-70169 00-70175 00-70301]

6/19/01 Filed original and 15 copies Petitioner State ofAlaska, Petitioner Cominco Alaska Incorpo-rated's supplemental brief of 13 pages, served on6/18/01. (per 3/27/01 ct's order) (PANEL) [00-70166, 00-70169, 00-70175, 00-70301] (at') [00-70166 00-70169 00-70175 00-70301]

8/3/01 Filed Order (Stephen R. REINHARDT, Kim M.WARDLAW, Ronald M. GOULD) The AlaskaDept of Environment Conservation's ("ADEC")motion for leave to file a response to the EPA'sHardesty Declaration is DENIED. We furtherorder, however, ADEC and Cominco Alaska,Inc. ("Cominco") to file a response to theHardesty Declaration that states whether theyagree that the material provided by the EPA anddescribed in the Hardesty Declaration constitutesthe complete administrative record in this pro-ceedings as both a factual and legal matter. IfADEC and Cominco contend that the materialsdescribed in the Hardesty Declaration do notconstitute a complete administrative record, theyare further ordered to provide legal authority for

28

this proposition and evidence that additional ma-terial exists. In addition, they are ordered to pro-vide legal authority for any proposed form of re-lief, such as discovery, they may seek to remedyany asserted failure by the EPA to provide the

complete administrative record. ADEC and iCominco are further ordered to file their re- !sponses or a combined response within 14 days !of the date hereof. The EPA may file a response iwithin 10 days thereafter. IT IS SO ORDERED.[00-70166, 00-70169, 00-70175, 00-70301] (af)[00-70166 00-70169 00-70175 00-70301 ] i

2/28/02 Filed Order (Stephen R. REINHARDT, Kim M. iWARDLAW, Ronald M. GOULD) Having con-sidered the recent: submissions of the partiesagreeing to the factual record on appeal and thebrfs filed beginning in 6/2000 (almost two yrsago), we have determined that supp briefingwould be of assistance in the determination ofthe cause. Therefore, it is ORDERED that eachside file a supp brf not to exceed 25 pgs within28 days of the date hereof on the following ques-tion: whether it is the state of Alaska (throughADEC) or the EPA that bears the ultimate legalauthority and responsibility under the Clean AirAct to determine whether an individual Preven-tion of Significant Deterioration permit issued byAlaska pursuant to its State Implementation Plan(SIP) meets the requirements of the Clean AirAct or the SIP. It" any party desires additionaloral argument in tlhismatter, it should file a re-quest, along with a brf statement of the reasons itbelieves additional argument is necessary. It is soORDERED. (served PANEL; phoned and faxedto csls at 3:00p.m.; c.c. Front Counter) [00-70166, 00-70169, 00-70175, 00-70301] (at) [00-70166 00-70169 00-70175 00-70301]

ri 29

3/28/02 Filed Original and 15 copies of Respondenti EPA's Supplemental brief of 25 pages pursuant

to ct's order of 2/28/02; served on 3/27/02.i (Fedex to PANEL) [00-70166, 00-70169, 00-

i 70175, 00-70301] (af) [00-70166 00-70169 00-i 70175 00-70301].f

_ 3/29/02 Filed Original and 15 copies Petitioner ComincoAlaska Incorporated's supplemental brief of 25pages, served on 3/128/02. (Fedex to PANEL)[00-70166, 00-70169, 00-70175, 00-70301] (af)[00-70166 00-70169 00-70175 00-70301]

4/1/02 Filed Original and 15 copies Petitioner State ofAlaska in 00-70166 supplemental brief of 10pages, served on 3/28/02. (per 2/28/02 order ofthe ct) (PANEL) [00-70166, 00-70169, (af) [00-70169 00-70175 00-71)301]

4/1/02 Filed original and 15 copies Petitioner State ofAlaska in 00-70166 supplemental brief of 10pages, served on 3/28/02. (Fedex to PANEL)

i [00-70166, 00-70169, 00-70175, 00-70301] (af)

i [00-70166 00-70169 00-70175 00-70301]7/30/02 Filed Order (Stephen R. REINHARDT, Kim M.

WARDLAW, Ronald M. GOULD) This cs ishereby resubmitted as of the date of this order.[00-70166, 00-70169, 00-70175, 00-70301] (af)[00-70166 00-70169 00-70175 00-70301]

7/30/02 Case resubmitted on this date to Stephen R.REINHARDT, Kim M. WARDLAW, Ronald M.GOULD. (See previous deferral of submission.)Order filed: 7/30/02. [00-70166, 00-70169, 00-70175, 00-70301] (af) [00-70166 00-70169 00-70175 00-70301]

7/30/02 FILED OPINION: DENIED. (Terminated on theMerits after Oral Hearing; Enforced; Written,Signed, Published. Stephen R. REINHARDT;Kim M. WARDLAW, author; Ronald M.

30

GOULD.) FILED AND ENTERED JUDG-MENT. [00-70i66, 00-70169, 00-70175, 00-70301] (at) [00-7016600-70169 00-7017500-70301]

9/23/02 MANDATEISSUED[00-70166,00-70169,00-70175,00-7030111(at) [00-7016600-7016900-70175 00-703011

11/4/02 Received notice from Supreme Court: petitionfor certiorari filed on 10/25/02 and placed on thedocket 10/31/02; Supreme Court No. 02-658.(CASEFILES) [00-70166, 00-70169, 00-70175,00-70301] (af) [00-70166 00-70169 00-7017500-70301]

2/28/03 Received notice from Supreme Court, petitionfor certiorari GRANTED on 2/24/03. SupremeCourt No. 02-658. (faxed to PANEL) (re-entered) (af) [00-70166 00-70169 00-70175 00-70301]

r

31


No. 00-70301

TECK COMINCO ALASKA INCORPORATED,

Petitioner,V.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent,

CAROL M. BROWNER, Administrator,

and CHUCK CLARKE, Regional Administrator,Region 10, of the United States

Environmental Protection Agency,

Respondents.

DOCKET ENTRIES

DATE PROCEEDINGS

3/16/00 FILED PETITION FOR REVIEW DOCKETEDCAUSE AND ENTERED APPEARANCES OFCOUNSEL, NOTIFIED RESPONDENTS OFFILING, SENT PETITIONER CIVIL APPEALSDOCKETING STATEMENT. setting scheduleas follows: petitioners' opening brief is due6/5/00; respondents' brief is due 7/5/00; peti-tioner's optional reply brief is due 7/18/00. [00-70301] (vt)[00-70301]

3/20/00 Filed joint mtn to consolidate (00-70166/70169/70175/70301) set coordinated briefing

r32

schedule, and extend deadline for filing of the icertified index to record; served 3/17/00.

:

(MOAI"T via PROMO) [00-70166, 00-70169,00-70175, 00-70301] [3873459] (re)[00-7016600-70169 00-70175 00-70301]

4/4/00 Received Respondent EPA's opposition tomotion for stay arid cross-motion to dismiss;served on 4/3/00. (opposition exceeds FRAP lim-its - motion pending - MoAtt) [00-70166, 00-70169, 00-70175, 00-70301] (dl) [00-70166 00-70169 00-70175 00-70301]

4/6/00 Received Respondent EPA's addendum toopposition to petitioner's motion for stay andcross-motion to dismiss; served on 4/5/00.(MoAtt) [00-70166, 00-70169, 00-70175, 00-70301] (dl) [00-70166 00-70169 00-70175 00-70301]


4/19/00 Received State's opposition to EPA'S motion todismiss petitions. (served on 4/14/00 MOATT[00-70166, 00-70169, 00-70175, 00-70301] (vt)[00-70166 00-70169 00-70175 00-70301]

4/28/00 Received Respondents' reply in support of mtnto dismiss petitions for lack of subject matter ju-risdiction; unopposed mtn of respondents forleave to file an oversized reply in support of mtnto dismiss petition for lack of subject matter ju-risdiction; respondents' ntc of suppl administra-tive action; served on 4/27/00. (MOATT) [00-70166, 00-70169, 00-70175, 00-70301] (rc) [00-70166 00-70169 00-.70175 00-70301]

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5/9/00 Received Cominco Alaska opposition to motionto dismiss. (served on 5/8/00 MOATT [00-70166, 00-70169, 00-70175, 00-70301] (vt) [00-70166 00-70169 00-70175 00-70301]

6/1/00 Filed order ( Harry PREGERSON, Ferdinand F.FERNANDEZ, Kim M. WARDLAW ): Peti-

i tioner the State of Alaska Department of Envi-' ronmental Conservation ("ADEC"), petitioner

Cominco Alaska Incorporated CCominco") and.t respondents the U.S. Environmental Protection| Agency, Carol M. Browner and Chuck Clarke's

(EPA) 3/20/00 joint motion to consolidate peti-tion 00-70166, 00-70169, 00-70175 and 00-70301 is granted. Petition nos. 00-70166, 00-70169, 00-70175 and 00-70301 are consolidated.Petitioner Cominco's unopposed motion forleave to file an oversized motion for stay isgranted. The Clerk shall file Cominco's 3/20/00motion for stay. Petitioner ADEC's March 31,2000 motion for joinder in Cominco's motion forstay of the EPA's 12/10/99, 2/8/00 and 3/7/00orders pending appeal is granted. Respondents'March 28, 2000 motion for extension of time tofile the response to petitioners' motion for stay isgranted. Respondents' unopposed 4/4/00 motionfor leave to file an ,oversized opposition to peti-tioners' motion for stay is granted. The Clerkshall file respondents' 4/4/00 opposition to peti-tioners' motion for stay, and respondents cross-motion to dismiss. The Clerk shall also file re-spondents' 4/6/00 addendum to its opposition tothe motion for stay, and respondents' motion todismiss. Petitioner Cominco's unopposed motionto file an oversized reply in support of its motionto dismiss is granted. The Clerk shall file the re-ply received 4/28/00. Petitioner Cominco's mo-tion to file a surreply in opposition to respon-dents' motion to dismiss is granted. The Clerk

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shall file the surreply rec'd 5/9/00. The Clerkshall file petitioner ADEC's 4/19/00 oppositionto respondents' motion to dismiss. PetitionerADEC's motion to file a surreply in oppositionto respondents' motion to dismiss is granted. Thesurreply was filed 5/11/00. Petitioner ADEC'smotion for oral argument is denied. PetitionerCominco's March 20, 2000 motion to stay re-spondent EPA's 12/10/99, 2/8/00 and 3/7/'00 or-ders pending appeal is denied. Respondents'4/4/00 cross-motion to dismiss is denied. The3/20/00 joint motion of Petitioners ADEC, I

Cominco and respondent EPA to extend the timeto file the certified index to the admin record isgranted. The certified index to the admin recordis due 6/26/00. Respondents' 4/3/00 motion tostay filing of the certified index to the admin re-cord is denied as moot. The following briefingschedule shall govern these consolidated peti-tions for review: the opening briefs are due6/26/00; the answering brief is due 7/26/00. Re-quests for extension of time will be looked uponwith disfavor. All parties on a side are encour-aged to join in a single brief to the greatest extentpracticable. All briefs shall comply with the pageand type-volume limitations set forth in FRAP32(a)(7). If all pa_des on a side file a joint brief,these parties may, in accordance with Ninth Cir-cuit Rule 28-4, timely move for enlargement ofsize of 5 monotype pages or 1,400 words. Re-quests for enlargement of size greater than 5pages or 1,400 words will be looked upon withextreme disfavor. MOTION FOR STAY DE-NIED; MOTION TO DISMISS DENIED. [00-70166, 00-70169, 00-70175, 00-70301] (It) [00-70166 00-70169 00-70175 00-70301]

6/29/00 Filed original and 15 copies Petitioner State ofAlaska in 00-70166, Petitioner Cominco Alaska

3:5

in 00-70169, Petitioner Cominco Alaska Inc. in00-70175, Petitioner Cominco Alaska in 00-70301 opening brief ( Informal: n) 57 pages andfive excerpts of record in 2 volumes; served on6/26/00 [00-70166, 00-70169, 00-70175, 00-70301] (je) [00-70166 00-70169 00-70175 00-70301]

8/17/00 Filed original and 15 copies respondent EPA in00-70166, 00-70169, 00-70175, 00-70301 in 66pages brief, 5 Exc. in 1 vol; served on 8/16/00.[00-70166, 00-70169, 00-70175, 00-70301] (af)[00-70166 00-70169 00-70175 00-70301]

9/7/00 Filed original and 15 copies State of Alaska,i Cominco Alaska, Cominco Alaska Inc., Cominco: Alaska's reply brief, ( Informal: no ) 46 pages;

with 5 Sup. Exc of Record in 1 volume; servedon 9/5/00. [00-70166, 00-70169, 00-70175, 00-70301] (af) [00-70166 00-70169 00-70175 00-703011

1/10/01 Filed Order (Deputy Clerk: gb) Petitioner'smotion to expedite and decision on appeal isDENIED. Petitioner's motion to allow longeroral argument is also DENIED. NANA RegionalCorporation, Inc.'s motion for leave to file anamicus letter brief is GRANTED. This letterbrief is hereby submitted. NANA Regional Cor-poration, Inc. shall be notified by mail throughits general counsel, Jacquelyn R. Luke, at 1001E. Benson Blvd., Anchorage, AK 99508(907)265-4148. The Native Village of Kivalina'smotion for leave to file an amicus letter brief isGRANTED. This letter brief is hereby submitted.The Native Village of Kivalina shall be notifiedby mail through its atty and trustee, Michael J.Frank, at 1026 West 4th Ave., Ste 201, Anchor-age, AK 99501 (907)276-4244x116) (faxed toPANEL and phoned counsels at 3:00p.m.) [00-

36

70166, 00-70169, 00-70175, 00-70301] (an [00-70166 00-70169 00-70175 00-70301 ]



2/9/01 Received Andrew J. Doyle for Respondent EPA ,letter dated 2/8/01 re: current event relating tothe Dec 10, 99 prevention of significant deterio-ration construction permit (No.9932-AC005) thatPetitioner State of Alaska, Dept of Environ-mental Conservation issued to Petitioner Comin-

co Alaska, Inc. (with attachment) (faxed toPANEL) [00-70166, 00-70169, 00-70175, 00-70301] (af) [00-.70166 00-70169 00-70175 00-70301]

2/13/01 ARGUED AND SUBMITTED TO Stephen R.REINHARDT, Kiln M. WARDLAW, Ronald M.GOULD [00-70166, 00-70169, 00-70175, 00-70301] (ss) [00-70166 00-70169 00-70175 00-703011

3/27/01 Filed Order (FOR PUBLICATION) (Stephen R.REINHARDT, Kim M. WARDLAW, Ronald M.GOULD) Within 60 days of this order, the EPAmay either (1) submit a complete administrativerecord which will allow this Court to review the

justification for the EPA's decision to issue theOrders before us; (2) withdraw the Orders thatare the subjects of these petitions or (3) file anenforcement action, (cite), in the appropriateU.S. District Court ....(Please see casefile forcomplete text) Should the EPA opt to submit theadministrative record rather than to pursue an en-forcement action or to withdraw its Orders, peti-tioners and respondents are ordered to file,within 21 days of such submission, supplementalbriefs, not to exceed 15 pgs, assessing the im-

37

pact, if any, (cite), on the question whether it isthe EPA or ADEC which has the ultimate author-ity to make BACT determinations. The partiesshall provide notice of the status of these pro-ceedings to this Court within 60 days hereof.Submission of this matter is hereby vacated untilfurther notice by this Court. IT IS SO OR-DERED. [00-701.66, 00-70169, 00-70175, 00-70301] (af) [00-7016600-7016900-7017500-70301]

6/19/01 Filed original and 15 copies Respondent EPA'ssupplemental brief of 11 pages, served on6/18/01. (per 3/27/01 ct's order) (PANEL) [00-70166, 00-70169, 00-70175, 00-70301] (af) [00-70166 00-70169 00-70175 00-70301]

6/19/01 Filed original and 15 copies Petitioner State ofAlaska, Petitioner Cominco Alaska Incorpo-rated's supplemental brief of 13 pages, served on6/18/01. (per 3/27/01 ct's order) (PANEL) [00-70166, 00-70169, 00-70175, 00-70301] (af) [00-70166 00-70169 00-70175 00-70301]

8/3/01 Filed Order (Stephen R. REINHARDT, Kim M.WARDLAW, Ronald M. GOULD) The AlaskaDept of Environment Conservation's ("ADEC")motion for leave to file a response to the EPA'sHardesty Declaration is DENIED. We furtherorder, however, _d_EC and Cominco Alaska,Inc. ("Cominco") to file a response to theHardesty Declaralion that states whether theyagree that the material provided by the EPA anddescribed in the Hardesty Declaration constitutesthe complete administrative record in this pro-ceedings as both a factual and legal matter. IfADEC and Cominco contend that the materialsdescribed in the Hardesty Declaration do notconstitute a complete administrative record, theyare further ordered to provide legal authority for

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this proposition and evidence that additional ma-terial exists. In addition, they are ordered to pro-vide legal authority for any proposed form of re-lief, such as discovery, they may seek to remedyany asserted failure by the EPA to provide thecomplete administrative record. ADEC andCominco are further ordered to file their re-sponses or a combined response within 14 daysof the date hereof. The EPA may file a responsewithin 10 days thereafter. IT IS SO ORDERED.[00-70166, 00-70169, 00-70175, 00-70301] (af)[00-70166 00-70].69 00-70175 00-70301]

2/28/02 Filed Order (Stephen R. REINHARDT, Kim M.WARDLAW, Ronald M. GOULD) Having con-sidered the recent submissions of the partiesagreeing to the factual record on appeal and thebrfs filed beginning in 6/2000 (almost two yrsago), we have determined that supp briefingwould be of assistance in the determination ofthe cause. Theretbre, it is ORDERED that eachside file a supp brf not to exceed 25 pgs within28 days of the date hereof on the following ques-tion: whether it is the state of Alaska (throughADEC) or the EPA that bears the ultimate legalauthority and responsibility under the Clean AirAct to determine whether an individual Preven- Ition of Significant Deterioration permit issued byAlaska pursuant to its State Implementation Plan(SIP) meets the requirements of the Clean AirAct or the SIP. If any party desires additionaloral argument in this matter, it should file a re-quest, along with a brf statement of the reasons itbelieves additional argument is necessary. It is soORDERED. (served PANEL; phoned and faxedto csls at 3:00p.m.; c.c. Front Counter) [00-70166, 00-70169, 00-70175, 00-70301] (at") [00- !

70166 00-70169 00-70175 00-70301 ]

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3/28/02 Filed Original and 15 copies of RespondentEPA's Supplemental brief of 25 pages pursuantto ct's order of 2/28/02; served on 3/27/02.(Fedex to PANEL) [00-70166, 00-70169, 00-70175, 00-70301] (af) [00-70166 00-70169 00-70175 00-70301]

3/29/02 Filed Original and l 5 copies Petitioner ComincoAlaska Incorporated's supplemental brief of 25pages, served on 3/28/02. (Fedex to PANEL)[00-70166, 00-70169, 00-70175, 00-70301] (af)[00-70166 00-70169 00-70175 00-70301 ]

4,/1/02 Filed Original and 15 copies Petitioner State ofAlaska in 00-70166, supplemental brief of 10pages, served on 3/28/02. (per 2/28/02 order ofthe ct) (PANEL) [00-70166, 00-70169, (at) [00-70169 00-70175 00-70301]

4/1/02 Filed original and 15 copies Petitioner State ofAlaska in 00-70166 supplemental brief of I0pages, served on 3/28/02. (Fedex to PANEL)[00-70166, 00-70169, 00-70175, 00-70301] (af)[00-70166 00-70169 00-70175 00-70301]


7/30/02 Case resubmitted on this date to Stephen R.REINHARDT, Kim M. WARDLAW, Ronald M.GOULD. (See previous deferral of submission.)Order filed: 7/30/02. [00-70166, 00-70169, 00-70175, 00-70301] (af) [00-70166 00-70169 00-70175 00-70301]

7/30/02 FILED OPINION: DENIED. (Terminated on theMerits after Oral Hearing; Enforced; Written,Signed, Published. Stephen R. REINHARDT;Kim M. WARDLAW, author; Ronald M.

40

GOULD.) FILEr) AND ENTERED JUDG-MENT. [00-70166, 00-70169, 00-70175, 00-70301] (af) [00-70166 00-70169 00-70175 00-703011

9/23/02 MANDATE ISSUED [00-70166, 00-70169, 00-70175, 00-70301] (af) [00-70166 00-70169 00-70175 00-70301]

11/4/02 Received notice from Supreme Court: petitionfor certiorari filed on 10/25/02 and placed on thedocket 10/31/02; Supreme Court No. 02-658.(CASEFILES) [00-70166, 00-70169, 00-70175,00-70301] (af) [00-70166 00-70169 00-7017500-70301 ]

2/28/03 Received notice from Supreme Court, petitionfor certiorari GRANTED on 2/24/03. SupremeCourt No. 02-658. (faxed to PANE[.) (re-entered) (af) [00--70166 00-70169 00-701.75 00-70301]

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COMINCO ALASKA, INCORPORATED.INDEX TO THE ADMINISTRATIVE RECORD

A. EPA NOTICES AND ORDERS

Docmt. Date DocumentNo.

1 12/10/99 Findings of Noncompliance and Orderw/cover letter to Michele Brown, AK.Dept. of Environmental Conservation(ADEC) from Chuck Findley, U.S.Environmental Protection Agency(EPA)

2 12/10/99 Three fax confirmation sheets sendingFindings of Noncompliance and Orderto Michele Brown, Cam Leonard, TomChapple and Rick Albright

3 2/8/00 Letter to Michele Brown, ADEC fromChuck Findley, EPA re: PSD permitand Finding of Noncompliance andOrder [On file with Court as EPA'sOpposition to Motion to Stay andCross-Motion to Dismiss, Att. 13.]

4 2/8/00 Three fax confirmation sheets to TomChapple, Michele Brown, CamLeonard sending 2/8/00 letter

5 2/8/00 Administrative Order w/cover letter toNorman Maloney, Reg. Agent forCominco from Chuck Findley, EPA

6 2/8/00 Six fax confirmation sheets to TomChapple, Michele Brown, LarryHartig, Jotm Key, Cameron Leonard,and Doug Horswell sending Adminis-trative Order

42:

Docmt. Date DocumentNO.

7 3/7/00 Amended Administrative Orderw/cover letter to Robert Connery, Esq.from Chuck Findley, EPA

8 3/7/00 Letter to Norman Mahoney sendingAdministrative Order

9 3/7/00 Fax confirmation sheet to John Key,Larry Hartig, Bob Connery, Michel[sic] Brown, Marcia Combes, KarenBlanchard, Greg Foote, and CarolHolmes

10 4/25/00 Letter to Michele Brown, ADEC :fromChuck Findley, EPA re: withdrawal of12/10/99 Order [On file with Court asEPA's Opposition to Motion to Stayand Cross-Motion to Dismiss, Att. 23.]

B. ADEC ANALYSIS, PROPOSED AND FINALPERMITS

Doemt. Date DocumentNO.

11 7/27/94 Letter to Charlotte MacCay, Comincofrom Leonard Verrelli, ADEC sendingthe findings of ADEC re: permit

12 3/27/96 Letter to Jack Coutts, ADEC from D.J. Charlton, Cominco re: a productionrate increase

13 4/2,;96 Letter to D. J. Charlton, Cominco from 'Alfred Bohn, ADEC re: Pre-ConstrucT:ion Waiver for ProductionRate Increase

14 12/4/96 ADEC Permit to Operate No. 9332-AAO03, Amendment No. 2

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15 1/17/96 ADEC Air Quality Control Permit to[sic] Operate No. 9511-AA007 Kensington

Mine

16 5/19/98 Letter to Paul Dusenbury, Comincofrom Robet_tCannone, ADEC re: testson gyratory crusher

17 5/4/99 ADEC's Preliminary TechnicalAnalysis Report for Air QualityControl Construction Permit No.9932-AC005 [On file with Court asEPA's Opposition to Motion to Stayand Cross-Motion to Dismiss, Att. 5.]

18 5/4/99 ADEC's Air Quality Construction_.... Preliminary Permit No. 9932-AC005

_? I9 7/29/99 Memo to Jim Baumgartner, ADEC::_i i: from John Stone, ADEC re: Excluded" " Pre-Construction Monitoring

20 8/5/99 Memo to Tom Chapple, ADEC from_ Jim Baumgartner, ADEC re: Cominco

_ Red Dog Mine Particulate Matter

[|!i i_'__(-: Impacts from the Production Rate

Increase Project and Associated

. _ Activities-.-<__-'._-.21 " 8/10/99 Memo to Jim Baumgartner, ADEC

--:-.:_.-,._ from Brian Renninger, ADEC re:. . Response to BACT Section of Appen-:_=_ dix A of Cominco's Comments on

Preliminary Technical Analysis Report_-=-. _: for Air Quality Control Construction

?_:- Permit No. 9932-AC005, EntitledPresentation to ADEC of Major Dis-

_., i. cretionary Air Quality Issues Pending_-_::: '_ Decision at Cominco's Red Dog Mine

.-._4_e=,.-:

-% )

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22 8/11/99 Memo to Tom Chapple, ADEC fromJohn Stone, ADEC re: review of

ADEC's preliminary decision forBACT

23 8/12/99 Memo to Cominco Red Dog Mine Filefrom .left Anderson, ADEC re:Owner-Requested Limits and AmbientImpacts for Specified Stack Parame-ters

24 8/13/99 Memo to John Stone from BillWalker, ADEC re: Particulate for 5MW Diesels

25 8/13/99 Memo to John Stone from Brian

Renninger, ADEC re: Follow-upRecommendation for the Removal ofthe 109,660,000 kW-hr Limit fromFour of Cominco's Wartsila 5 MWGenerator Sets

26 8/13/99 Cominco Red Dog Mine Power PlantNOx Emission Comparison PSDBACT Options

27 8/19/99 Memo to John Stone from Jim

Baumgartner, ADEC re: Considerationof Cominco's Request to Revise theCarbon Monoxide Emission Limit for

Wartsilg Sources MG-1 ThroughMG-6 and MG- 17

28 8/23/99 ADEC's Draft Response to Com-ments, Cominco Alaska Red DogMine Production Rate Increase ProjectAir Quality Construction Permits No.9932-AC005

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29 9/1/99 ADEC's Final Draft Technical Analy-sis Report for Air Quality ControlConstruction Permit, No. 9932-AC005

30 9/3/99 !ADEC Air Quality ConstructionPermit Final Draft

31 9/20/99 Cominco Alaska Inc. Comments onMine Site Air Permit, TAR andResponse to Comments

32 12/10/99 ADEC's Air Quality ConstructionPermit No. 9932-AC005 [On file withCourt as EPA Opposition to Motion toStay and Cross-Motion to Dismiss,Att. 12.]

33 12/10/99 ADEC'S Final Technical AnalysisReport for Air Quality Control Con-struction Permit No. 9932-AC005 [Onfile with Court as EPA Opposition toMotion to Stay and Cross-Motion toDismiss, Att. 10.]

34 12/10/99 ADEC's Response to CommentsCominco Alaska Red Dog MineProduction Rate Increase Project AirQuality Construction Permit No. 9932-AC005

p ,- ,

t C. COMINCO PERMIT APPLICATION ANDRELATED SUBMISSIONS


35 12/97 Appendix C, Source Test Results fromCominco's Application for Air QualityControl Operating Permit (Title 5)

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36 6/98 Application for an Air Quality ControlConstruction Permit: Production Rate

Increase for Red Dog Mine

37 10/98 Air Quality Control ConstructionPermit: Response to 7/27/98 ADECRequest for More Information for RedDog Mine


39 1/99 Air Quality Control ConstructionPermit: Response to 12/7/98 ADEC

' Request for More Information for RedDog Mine

40 2/99 Amendment and Supplemental Sub-mission for the 6/98 Production Rate

Increase Permit Request for Red DogMine


42 4/15/99 Letter to Jim Baumgartner, ADECfrom A1 Trbovich, Hoefler ConsultingGroup re: Amendment III for the 6/98Production Rate Increase Permit

Request

43 6/99 Comments on Draft Air QualityControl Construction Permit No.9932-AC005

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44 6/99 Comments on Preliminary TechnicalAnalysis Report for Air QualityControl Construction Permit No.

9932-AC005 for Red Dog Mine

45 6/22/99 Presentation to ADEC of MajorDiscretionary Air Quality IssuesPending Decision at Cominco's RedDog Mine

D. CORRESPONDENCE


46 6/2/99 Letter to Jim Baumgartner, ).DECfrom John Notar, Department ofInterior (DOI) sending comments onproposed construction permit [On filewith Court as EPA Opposition toMotion to Stay and Cross-Motion toDismiss, Att. 4.]

47 7/29/99 Letter to Tom Chapple, ADEC fromAnita Frankel, EPA re: EPA's con-cerns about proposed permit

48 9/15/99 Letter to Tom Chapple, ADEC fromAnita Frankel, EPA re: EPA's con-cerns about final draft permit [On filewith Court as EPA Opposition toMotion to Stay and Cross-Motion toDismiss, Att. 6.]

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49 9/20,/99 Letter to Anita Frankel, EPA fromJohn Bunyak, DOI re: DOI's concernsregarding proposed constructionpermit [On file with Court as EPAOpposition to Motion to Stay andCross-Motion to Dismiss, Att. 11.]

50 9/28/99 Letter to Tom Chapple, ADEC fromAnita Frankel, EPA sending EPA'sstaff review of ADEC's TechnicalAnalysis Report and PSD Permit forthe Production Rate Increase [On filewith Court as EPA Opposition toMotion to Stay and Cross-Motion toDismiss, Att. 7.]

51 10/8/99 Letter to Anita Frankel, EPA fromCharlotte MacCay, Cominco re:comments on EPA's Review ofCominco PSD permit [On file withCourt as EPA Opposition to Motion toStay and Cross-Motion to Dismiss,Att. 8.]

52 10/18/99 Letter to John Key, Cominco fromRobert Colmery, Holland & Hart, LLPre: EPA Usurpation of Alaska'sProgram :forthe PSD

53 10/29/99 Memo to Chuck Findley, EPA fromCharlotte MacCay, Cominco re:EPA's Oversight of the ADEC PSDPermit for the Red Dog Mine, includ-ing memo to EPA from Bob Conneryand Larry Volmert, Holland & Hart re: Ioversight

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54 1l/3/99 Letter to Michelle [sic] Brown, ADEC _from Robert Connery, Holland & Hartre: Alaska's Role in PSD

55 11/10/99 Letter to Michele Brown, ADEC fromChuck Findley, EPA re: 10/21/99 mtgwith Cominco [On file with Court asEPA Opposition to Motion to Stay andCross-Motion to Dismiss, Att. 9.]

56 No date ' Letter to Chuck Clark [sic], EPA fromJohn Key, Cominco re: 11/12/99meeting on air permitting issues and

i sending economic information57 11/19/99 Letter to Charles Clarke, EPA from

' Congressman Don Young re: permitfor Cominco Alaska's Red Dog Mineexpansion

58 12/21/99 EPA's response to CongressmanYoung

59 12/7/99 Faxed memo to Chuck Clark [sic],EPA from Charlotte MacCay,Cominco sending 12/6/99 opinion ofRobert Connery and Lawrence Vol-mert, Holland & Hart re: EPA Author-ity to Bring Enforcement Action inFederal District Court under Sec. 167Without Prior Issuance of Administra-tive Order

60 12/27/99 Letter to Eric Yould, Alaska RuralElectric Cooperative Association(ARECA) from Michele Brown,ADEC responding to concerns of ruralutilities

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61 1/5/00 Letter to Chuck Clarke and ChuckFindley, EPA from Michele Brown,ADEC r,e: concern over EPA's letterand Order prohibiting Alaska fromissuing a PSD permit ,r

62 1/12/00 Letter to Erick Yould, ARECA from ,Chuck Findley, EPA, clarifying EPA'sposition re: Prevention of SignificantDeterioration (PSD) permits and _,applicability of Best Available ControlTechnologies (BACT)

63 1/14/00 Letter to Carol Browner, EPA fromGov. Tony Knowles, State of Alaskare: requesting review of EPA's Order

64 2/16/00 Letter r_o Chuck Clarke, ChuckFindley, Doug Hardesty from RobertConnery re: Request for Stay [On filewith Court as EPA Opposition toMotion 1:oStay and Cross-Motion toDismiss, Att. 1.]

65 3/1/00 Letter to. Julie Matthews, EPA fromLarry Hartig re: Generator No. 7(MG-17) Construction Schedule [Onfile with Court as EPA Opposition toMotion 1:oStay and Cross-Motion toDismiss, Att. 22.]

66 3/14/00 Ltr to Charles Clarke, EPA from JohnKey, Cominco re: request for a stay

67 3/14/00 Ltr to Julie Matthews, EPA fromLawrence Hartig, Esq. re: filing amotion fi_rstay

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68 4/26/00 Ltr to John Key, Cominco fromBarbara McAllister, EPA re: construc-tion schedule and request for stay [Onfile with Court as EPA Opposition toMotion to Stay and Cross-Motion toDismiss, Att. 24.]

E. EPA GUIDANCE AND BACT PROCESS


69 12/14/83 Memo to Regional Counsels, et al.,EPA from Michael Alushin andEdward Reich, EPA re: Guidance onEnforcement of Prevention of Signifi-cant Deterioration Requirements underthe Clean Air Act

70 7/15/88 Procedures for EPA to AddressDeficient New Source Permits underthe Clean Air Act [On file with Courtas EPA Opposition to Motion to Stayand Cross-Motion to Dismiss, Att. 20.]

71 10/90 Draft New Source Review WorkshopManual, Prevention of SignificantDeterioration and Nonattainment AreaPermitting

52


72 1/22/93 Memo to Scott Fulton, EPA fromRaymond Ludwiszewski, EPA re:EPA Enforcement Authority withRespect to Sources Based on a Findingof a State's Failure to Comply withNew Source Requirements: The Effectof the 1990 Amendments-- LegalOpinion [iOn file with Court as EPA iOpposition to Motion to Stay andCross-Motion to Dismiss, Att. 16.]

73 Tables re: NOx controls on engines _

74 Permit for Fuel Burning Equipment,State of Connecticut, Department ofEnvironmental Protection, Bureau ofAir Management

F. SIP APPROVALS


75 7/5/83 Approval and Promulgation of hnple-mentation Plans; Alaska, Final Rule,

48 Fed. Reg. 30,623 (1983)

76 4/24/84 Approval and Promulgation of Imple-mentation Plans; Alaska, Final Rule,

49 Fed. Reg. 17,497 (1984)

77 4/26/91 Approval and Promulgation of StateImplementation Plans: Alaska, FinalRule, 56 Fed. Reg. 19,284 (1991)

78 2/16/95 Approval and Promulgation of Imple-mentation Plans: Alaska, Direct Final

Rule, 60 Fed. Reg. 8943 (1995)

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79 11/18/98 Approval and Promulgation of StateImplementation Plans; Alaska, FinalRule, 63 Fed. Reg. 63,983 (1998)

G. MISCELLANEOUS


80 5/11/94 Delegation 7-37, CAA AdministrativeEnforcement Actions: New SourceReview (NSR) Orders

81 5/11/94 Delegation 7-38, CAA Prevention ofSignificant Deterioration: Administra-tive Enforcement

82 3/21/96 I Delegation RIO 1265.1, CAA Regula-tory Enforcement Orders EnforcingNSR and PSD Requirements

83 1998 Cominco's Annual Report, SolidProgress in a Challenging Year

84 9/8/99, Information from Cominco's website2/3/00

85 Materials provided by Cominco at10/21/99 meeting:

-Info on PSD permitting for 1988,1994 and 1999

- Presentation to Alaska Department ofEnvironmental Conservation ofMajor Discretionary Air QualityIssues Pending Decision at Comin-co's Red Dog Mine

- Legal research materials

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86 10/26/99 Newspaper article from Anchora_Daily News on Cominco Ltd. [On filewith Court as EPA Opposition toMotion to Stay and Cross-Motion toDismiss, Att. 21.]

87 2/2/00 Delegation of Authority, Comincc RedDog Mine

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ALASKA DEPARTMENTOF ENVIRONMENTAL CONSERVATION

Juneau, Alaska

PRELIMINARYTECHNICAL ANALYSIS REPORT

For Air Quality Control Construction PermitNo. 9932-AC005

Cominco Alaska, Inc.Prevention of Significant Deterioration

Red Dog Mine Production Rate Increase

May 4, 199!;)

Prepared by:Alaska Department of Environmental ConservationAir Quality Maintenance Section410 Willoughby Avenue, Suite 105Juneau, AK 99801

In conjunction with:Hoefler Consulting1205 East International Airport Road, Suite 201Anchorage, AK 99578

56

TABLE OF CONTENTS

1. EXECUTIVE SUMMARY 3

2. INTRODUCTION 7

2.1 PROJECT LOCATION ........................................... 8

2.2 EMISSION SOURCES ........................................... 8

2.3 PSD APPLICATION REQUIREMENTS ............. 12

3. EMISSION STANDARDS 15

3.1 NEW SOURCE PERFORMANCESTANDARDS ....................................................... 15

3.2 NATIONAL EMISSION STANDARDSFOR HAZARDOUS AIR POLLUT-ANTS ..................................................................... 20

3.3 ALASKA EMISSION STANDARDS .................. 21

4. BEST AVAILABLE CONTROLTECHNOLOGY 29

4.1.1 Mechanisms of NOx Formation ....................... 31

4.1.2 NOx Control Methods ...................................... 33

4.4 CONTROL OF PARTICULATE

MATTER (PM- 10) ................................................ 48

4.4.1 Mechanism of PM-10 Formation ...................... 48

4.4.2 PM-10 Control Methods ................................... 49

4.3 CONTROL OF SULFUR DIOXIDE

(SO2) ....................................................................... 56

4.3.1 Mechanisms of SO2 Formation ......................... 56

7. PERMIT ADMINISTRATION 83

7.1 Standard Conditions ............................................... 83

7.3 Preliminary Decision .............................................. 85

8. CONCLUSIONS 87

9. REFERENCES 89

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APPENDIX A Tables from the Permit ApplicationAPPENDIX B Control Costs for BACT

APPENDIX C Coastal Zone Project Questionnaire

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ABBREVIATIONS AND ACRONYMS

BACT Best Available Control TechnologyCEM Continuous Emission MonitorCFR U.S. Code of Federal RegulationsCO Carbon MonoxideDEC Alaska Department of Environmental

ConservationEGR Exhaust Gas Re-circulationEPA U.S. Environmental Protection AgencyESP Electrostatic PrecipitatorFITR Fuel Injection Timing Retardhp Horsepowerhr HourH2S Hydrogen SulfideISO Conditions 288K, 60 pct relative humidity and 101.3

kilopascals pressureKW KilowattsLAER Lowest Available Emission RateMMBtu Million British thermal unitsNAAQS National Ambient Air Quality StandardsNESHAP National Emission Standards for Hazard-

ous Air PollutantsNSCR Non-Selective Catalytic ReductionNSPS New Source Performance StandardsNO Nitric OxideNOx Oxides of nitrogenNO2 Nitrogen DioxideOLM Ozone Limiting MethodOSHA Occupational Safety and Health Admini-

strationPM Particulate matterPM- 10 Particulate matter (10 micrometers or less

in size)ppmdv Parts per million, dry volume basisPSD Prevention of Significant DeteriorationSCO Selective Catalytic OxidationSCR Selective Catalytic Reduction

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SNCR Selective Non.-Catalytic ReductionSO2 Sulfur Dioxide

TSP Total suspended particulate (30 mi-crometers or less)

VOC Volatile organic compounds_tg/m3 Microgram per cubic meter

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4. BEST AVAILABLE CONTROL TECHNOLOGY

The Department's goal for the best available control technol-ogy (BACT) review is to evaluate available technologies,identify BACT for the project's emission sources, andestablish emission or operational limits which representBACT. This review is conducted in accordance with Stateand federal rules and guidelines. In this section, the Depart-ment evaluates the available control technologies for eachemission source and selects BACT. In addition, the Depart-ment assesses the level of monitoring, record keeping, andreporting necessary to ensure the applicant applies BACT.

Under the State of Alaska's PSD Provisions of the AirQuality Control Regulations, an applicant subject to pre-construction review must show that BACT will be installedand used for each new or modified source. BACT is definedas an emission limit that represents the maximum reductionachievable for each regulated air contaminant subject to pre-construction review under the PSD provisions of the CleanAir Act (CAA). For this project, BACT evaluation is re-quired for the following contaminants: oxides of nitrogen(NOx), particulate matter (PM-10), and volatile organiccompounds (VOC).

Application of BACT will not result in emission of anypollutant which would exceed the emissions allowed by anyapplicable federal standard listed in 40 CFR, Part 60 NSPS,and 40 CFR 61 National Emission Standards for HazardousAir Pollutants (NESHAPS).

On a case-by-case basis, the Department, taking into accountenergy, environmental, and economic impacts, determinesemission limits for new sources or modifications through theapplication of production, process, or available controlsystems and techniques. The Department identifies availablecontrol technology and evaluates the most effective controlmeasure available for a stationary source for each pollutant.

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The Department may propose a balanced approach reducingall air contaminants in an optimized manner, rather thanachieving the maximum degree of emissions reduction for asingle air contaminant.

The Department evaluates economic feasibility of BACT bycomparing the control cost of each available control technol-ogy. If the Department determines that technological oreconomic constraints of the control system for a particularpollutant would make the imposition of an emission standardinfeasible, the Department may prescribe a design, equip-ment, work practice, operational standard, or combination, tosatisfy the requirement for BACT. The Department will setforth the emission reduction achievable through implementa-tion of such design, equipment, work practice, or operation.

As part of a complete application, the applicant must providean adequate demonstration that the proposed emissioncontrol system represents BACT for the project. The appli-cant prepares an economic comparison of available technolo-gies by summing the annualized capital and operational costsfor a given technology, and dividing the cost sum by the aircontaminant emission rate reduction expected for thattechnology. This results in an incremental cost for compari-son with other technologies analyzed, in terms of cost per tonof air contaminant reduced. The lower the cost per ton, theless expensive it is to employ that technology. The Depart-ment determines the economic feasibility threshold thatreflects the appropriate site-specific level of control for thepollutant and new sources.

The methodology Cominco used to identify BACT is thefive-step "top-down" methodology set forth in the U.S.EPA's proposed New Source Review Rule Revisions (EPA1990). The first step is to survey alternative control tech-niques and identify all "available" control options. Anavailable control option is a practical air pollution controltechnology or technique to the emission unit and pollutantunder evaluation.

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To assist in identifying available controls, Cominco and theDepartment reviewed the available controls listed on EPA'sRACT/BACT/LAER (RBLC) Clearinghouse bulletin boardwhere permitting agencies nationwide have listed the BACTcontrol technologies imposed within the past five years.

The second step in the top-down approach evaluates the It

technical feasibility of each available control option based on _source-specific factors. The Department deems as techni-cally infeasible those control options that would clearly resultin technical difficulties that prerlude their successful applica- !tion. _

Step three determines the effectiveness of control alternativesfor all options not eliminated in step two. The Departmentranks the control options in order of overall control effec-tiveness for the pollutant under review in a "top-down" imanner, f

Step four considers the energy, environmental, and economicimpacts of control options. The step begins with the top-ranked, technically-feasible control alternative. If the mosteffective control option is shown to be inappropriate due toadverse economic, environmental, or energy impacts, then itis eliminated and the next most stringent alternative isevaluated. If the most stringent technology is selected asBACT, it is not necessary to continue the analysis.

Finally, under step five, the Department proposes the mosteffective control option not eliminated in step four as BACTfor the pollutant and emissions unit under review.

All BACT requirements, with limits, monitoring, recordkeeping, and reporting obligations are incorporated inCondition XI of the permit. Table 4-1 below summarizes theBACT proposed by the Department.

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Table 4-1 Department BACT Limits

Equipment I NOx CO PM-10 VO(_

MG-5 & _ 11 gr/kW- N/A 1 2.6 lb./hr,MG- 17 hr 10% opacity

MG- 11 GOP 2 GOP

MG- 12 GOP GOP

MG- 13 GOP GOF'0.05 gr/dscf,

MC- 1 N/A N/A 20% opacityMG-14 GOP GOP

MG- 15 GOP GOP

MG-16 GOP N/A

MH-1, MIq- 0.035 GOP N/A GOP2 & MH-3 lb/MMBtu

MH-4, & GOP GOP N/AMH-5

MH-6 GOP GOP N/A

throughMH-36

MH-37 GOP N/A GOP

throughMH-48

MI-3 GOP N/A 10% VisibleEmissions

MD-4 N/A N/A 0.01 gr/dscf NA

MD-6 & N/A N/A 0.01 gr/dscf N/AMF-3

MY-1 & N/A N/A N/A SubpartMT-2 Kb

MY-3 N/A N/A N/A

MF- 1 N/A N/A N/A N/A

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MF-5 N/A N/A Chemical N/AStabilizationand Water-

ing

MF-6 N/A N/A quarry-liquid N/Aapplicationwhere

practical,drilling -liquidapplication

MF-7 N/A N/A Covering, N/Arevegetation,watering

MF-8 & 9 No No No Control NoControl Control Control

MF- 10 N/A N/A N/A N/A

MF-11 N/A N/A LL and OOO N/A

MF- 12 N/A N/A OOO N/A

1N/A - Not Applicable

2 GOP - Good Operation Practices;

4.1 BACT DETERMINATION FOR NOx

This facility is currently permitted to emit greater than 250tons per year of NOx, and is therefore classified as a PSD

Major facility under 18 AAC 50.300(c)(1). The proposedmodification will increase allowable NOx emissions in

excess of the 40 ton per year PSD applicability thresholdspecified in 18 AAC 50.300(h)(3)(b)(ii). Therefore, theDepartment will impose NOx BACT for the proposed NOxemission sources.

The Department evaluated several NOx control methods as

BACT for the following sources: large diesel-fired engines,

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small diesel-fired engines, small heaters, and the modularwaste incinerator. The specific options and evaluation resultsare summarized in Tables 4.1-1 to 4.1-4, and discussed indetail in this section.

Table 4.1-1 Summary of NOx BACT(Large Diesel-Fired IC Engines)

Available Technically EconomicallyControls Feasible Feasible BACT

Selective Yes Yes No_CatalyticReduction

Non-Selective No N/A z N/ACatalyticReduction

Direct Water Yes No NoInjectionLow NOx Yes Yes Yes 1Modification

Fuel Injection Yes Yes NoTiming Retard

Operation per Yes Yes NoDesign

1While SCR is a technically and economically feasiblecontrol technology, Low NOx control technology was chosenas BACT due to other considerations. See the discussionbelow for the details.

2N/A - Not Applicable

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Table 4.1-2 Summary of NOx BACT(Small Diesel-Fired IC Engines)


Selective No N/A 1 N/A++

+ Catalytici ReductionI

' Non-Selective No N/A N/ACatalyticReduction

Direct Water No N/A N/A

Injection

Fuel Injection Yes No NoTiming RetardLean Burn No N/A N/ACombustion

Turbocharger Yes Yes No_and After-cooler

Operation per Yes Yes YesDesign

t N/A - Not Applicable

2All of the engines are fitted with turbochargers as part oftheir design. Two of the engines, MG-14 and MG-15, arefitted with aftercoolers as part of their design. ADEC doesnot consider retrofitting the smaller engines with af_ercoolerstechnically-feasible, due to their small size.

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Table 4.1-3 Summary of NOx BACT (Small Heaters)


Low NOx Yes No No _Burner/FlueGas Recircu-lation

Staged No N/A _ N/ACombustionAir

Selective No N/A N/A

CatalyticReduction

Operation Per Yes Yes Yes _Design

_LNB/FGR is BACT for heaters MH-1, MH-2 due to their

larger size.

2 N/A - Not Applicable

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i Table 4.1-4 Summary of NOx BACT (Incinerator MI-3)i Available Technically Economically !

Controls Feasible Feasible BACT i: i

! Staged Air Yes Yes Yes"t CombustionI

Selective No N/A _ N/ANon-CatalyticReduction

Selective No N/A N/ACatalyticReduction

Operation Yes Yes Yes-'Per Design

i N/A - Not Applicable

2 Staged air combustion is integral to the incinerators design.

4.1.1 Mechanisms of NOx Formation

Combustion is defined as the rapid chemical combination ofoxygen with combustible elements of a fuel. Combustionproduces heat that can be manipulated to generate power.Most fuels have three combustible elements: carbon, hydro-gen, and sulfur, which unite with oxygen from atmosphericair to produce heat. Atmospheric air is a mixture that con-tains roughly 79% nitrogen and 21% oxygen by volume.Nitrogen present in the combustion process sometimescombines with oxygen, forming oxides of nitrogen.

There are several types of oxides of nitrogen formed duringthe combustion process, but only two types occur in signifi-cant quantities: nitric oxide--NO, and nitrogen dioxide--NO2. In stationary source combustion, most of the NOxformed is nitric oxide (NO), which can oxidize in the atmos-

i phere to form NO2, a regulated air contaminant. At hightemperatures, NO formation is favored almost exclusively

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over NO2 formation, and the rate of NO2 dissociation to NOis favored by the mechanism:

NO2 + O + heat _ NO + 02

After the flue gas exits the stack, the entrained NO may beoxidized by atmospheric ozone to form NO2. Other complexatmospheric reactions with NO and NO2 can also occur.

There are three mechanisms for NOx formation duringcombustion of certain fossil fuels. These formation mecha-

nisms are thermal, fuel-bound, and prompt NOx. A briefdiscussion of each mechanism follows.

Thermal NOx Formation

The predominant mechanism in combustion reactions isthermal fixation of the atmospheric nitrogen at elevatedtemperatures, usually greater than 2800°F, known as thermalNOx. Production of thermal NOx is an exponential functionof the flame temperature, and a linear function of the time thehot gas mixture is at that flame temperature. This mecha-nism follows the Zeldovich reactions, with three predominantpaths for NOx formation in combustion:

(1) N2 + O _ NO + N

(2) N + 02 _ NO + O

(3) N + OH _ NO + H

Note that reaction (1), which is highly temperature-dependent, provides the atomic nitrogen (N) necessary forreactions (2) and (3). Note further that the reverse reactionsare not favored by the presence of molecular oxygen.Therefore, in the oxidizing environment that normally pre-vails downstream from the actual combustion zone due to the

presence of excess combustion air, the NO that has beenformed is essentially fixed.

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Fuel-Bound NOx

Chemically-bound nitrogen in the fuel is known as fuel-bound nitrogen. The oxidation mechanism is dependent onfuel-bound nitrogen content, fuel properties, and thestoichiometric conditions present during combustion. Themost significant factors attributing fuel-bound NOx forma-tion are chemically fuel-bound nitrogen content, and the fuel-to-air ratio during the early stages of combustion when fuel-bound nitrogen is liberated from 'the fuel.

As the chemically-bound nitrogen in the fuel enters the flamezone, the fuel is burned into small reactive, nitrogenousorganic molecules which react with oxygen to form NO. In areduction environment where insufficient oxygen is presentfor complete combustion, such as the fuel-rich zone ofcombustion, the nitrogenous fuel fragments encounter andreact with each other, and convert the fuel-bound nitrogen tomolecular nitrogen (N2).

Fuel-bound nitrogen can be a significant source of NOxemissions from fossil fuels such as residual oil and coal, butsignificantly less fuel-bound nitrogen is contained in naturalgases. The Department typically uses the most conservativetechnique to estimate NOx emissions due to fuel-boundnitrogen--to assume that all nitrogen in the fuel is convertedto NOx during combustion.

Prompt NOx

Prompt NOx is produced by the formation of an intermediarysuch as hydrogen cyanide (HCN), through the reaction ofnitrogen radicals and hydrocarbons (HC),

NO + HC + H2 - HCN + H20

followed by the oxidation of the HCN to NO. The formationof prompt NOx has a weak temperature dependence and ashort lifetime of several microseconds. It is only significantin very fuel-rich flames, which are inherently low NOxemitters.

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4.1.2 NOx Control Methods

This section describes the control technologies that may beavailable to reduce NOx emissions from one or more of thesource categories listed by the applicant. The Department'sevaluation of the availability and effectiveness of these con-trols for each of the applicant's source categories is providedin Sections 4.1.3 through 4.1.5.

Selective Catalytic Reduction (SCR)

Selective Catalytic Reduction (SCR) is a potential emissioncontrol technology for turbines and other internal combustionsources. SCR systems use ammonia to selectively reduceNOx to N2. This technology reduces both thermal and fuel-bound NO2. SCR injects ammonia or urea into the exhaustbefore the exhaust enters a catalyst bed made with vanadium,titanium, or platinum. The reduction reaction occurs whenthe flue gas passes over the catalyst bed where the NOx andammonia combine to become nitrogen, oxygen, and water asfollows:

4NO + 4NH3 + 02 ._ 4N2 + 6H20

2NO2 + 4NHs + 02 _ 3N2 + 6H20

The required catalyst bed temperature is dependent on thetype of catalyst used, and must be maintained within anarrow temperature range for effectiveness. Manufacturerstailor their catalyst design for the temperature range ex-pected. A metal oxide catalyst, such as vanadium or titaniumis effective between approximately 600 °F and 750 °F. For awider temperature range, zeolite catalysts have been effectivein the 800 °F to 1200 °F temperature range.

Temperature dramatically affects NOx reduction because thecatalyst exhibits optimum performance within a narrowtemperature range. Below this optimum range, the catalystactivity is greatly reduced, allowing unreacted ammonia to"slip" through. This slip results in increased ammonia con-centration in the exhaust gas that is discharged into the

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atmosphere. Above the range, ammonia begins to be oxi-dized to form additional NOx. Further excessive tempera-tures may damage the catalyst.

In addition to tight operating temperature controls, the SCRprocess requires good control and continual adjustment of theammonia injection rate to match the rate of NOx formation.An ammonia deficiency causes nitric oxide to react preferen-tially with the excess oxygen, while an ammonia surplusleads to additional ammonia slip.

Exposing a catalyst to sulfur-bearing fuels and ammoniaforms ammonia salts. These salts foul the surface of thecatalyst, rendering it useless and causing premature replace-ment. Sulfur-tolerant SCR catalysts are available, but arecomposed of vanadium pentoxide, a hazardous substance.These catalysts are still susceptible to some ammoniumsulfate fouling. The spent vanadium pentoxide catalystwould have to be shipped off=site for disposal. To addressthis concern, many catalyst vendors operate exchangeprograms where spent catalysts are exchanged for newcatalysts at a reduced price. Exchange programs alleviatecustomer waste disposal concerns and allow the vendor torecycle the precious metals that make up many of the cata-lysts.

In summary, successful operation of an SCR system occurs ifthe catalyst is exposed to an exhaust stream that is not anoxidizing environment. The injection of a reducing agent,most commonly ammonia (NHD, causes NO to preferentiallyreact with the agent to form nitrogen and water, rather thanreacting with the excess oxygen. SCR requires a narrowtemperature range to achieve optimum catalytic performance.SCR may be used in conjuncti,on with reductions from steamor water injection, or combustion modifications.

Carefully designed SCR systems achieve NOx reductionefficiencies as high as 90%, with ammonia slip vendorguarantees of no greater than 10 ppm available. Conserva-tive reductions are 80% control efficiency. This technology

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has not been applied in Alaska, though the Departmentknows of no technical difficulty particular to Alaska thatwould prevent SCR use.

Non-Selective Catalytic Reduction (NSCR)

Non-selective Catalytic Reduction (NSCR), sometimes calleda three-way catalyst, reduces NOx emissions 80% to 90% ata temperature between 800 and 1200 degrees F. NSCRsystems use a mixture of platinum and rhodium catalyst, andcarbon monoxide and hydrocarbons (CH4) as reducing agentscontained in the flue gas, forming N2, H20 and carbondioxide. The chemical reaction process is not fully under-stood, but can be represented in the following basic formulas:

CH4 + 4NO2 --_ CO2+ 4NO + 2H20

CH4 + 202 _ CO2 + 2H20

CH4 + 4NO2 _ CO2 + 2N2 + 2H20

2CO + 2NO _ 2CO2 + N2

2H2 + 2NO --_ 2H20 + N2

NSCR is only effective in a fuel-rich, preferably gas-fired,non-variable load combustion. The air-to-fuel ratio must beat or close to stoichiometric to provide adequate concentra-tion of reducing agents in the exhaust gas. Stoichiometriccombustion produces exhaust gas nearly depleted of oxygen(less than four percent oxygen). The inability to control air-to-fuel ratio for varying loads limits NSCR application.NSCR is best known for its application in reducing NOxfrom automobile exhaust. NSCR uses no reactant for thecontrol of NOx.

Selective Non-Catalytic Reduction (SNCR)

Selective non-catalytic reduction (SNCR) is a thermaldenitrification process that also involves the injection ofammonia or urea into the exhaust gases. The ammonia orurea reduces NOx to N2 within a narrow temperature range of

74

1600 to 2000°F without a catalyst. At these temperatures, 80to 90% NOx emission reduction can be achieved. Since theoptimum reaction temperature is very high, the applicabilityof SNCR is primarily restricted to large industrial boilers.

As with SCR, SNCR requires transportation, handling, andstorage of ammonia, a hazardous substance. There is apotential of ammonia slip in the exhaust gas, increasingammonia levels in the ambient air. The other technicalproblem for most applications is the physical ammonia orurea injection location. For equipment operating at variousloads, the proper injection temperature "window" physicallymoves within the combustion zone and the exhaust ductwork,requiring multiple injection locations.

Direct Water Injection/Low NOx Modification

Direct Water Injection lowers the peak flame temperature byproviding a heat sink that absorbs some of the heat of thereaction, thereby reducing peak flame temperature and theresultant rate of NOx formation. The water injected into theengine is required to be extremely pure or the engine willrequire significant amounts of maintenance and repair. Themanufacturer of Cominco's large: diesel-fired engines,usually installs Direct Water Injection on engines with LowNOx modification packages. The Low NOx modificationpackage is described below. Cominco has verified that areverse osmosis water treatment and injection system wouldbe necessary for this technology to be considered. A NOxreduction of 40% to 60% may be expected with this com-bined technology. Wartsila expects NOx emissions ofapproximately 6 grams per KW- hour with DWI controlsinstalled on the 5000 kW generators. The manufacturerexpects no additional fuel consumption when retrofitting the5000 kW generators with both DWI and Low NOx Modifica-tion. If only DWI was retrofit, a 3% increase in fuel con-sumption is anticipated.

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DRY CONTROLS

Dry controls incorporate an efficient combustion chamberdesign, staged combustion, and/or use of a lean fuel-to-airratio. The use of lean fuel-to-air ratio results in lowered

average combustion temperatures, reducing the formation ofthermal NOx. Thermal NOx formation tends to be maximum

at the high temperatures associated with stoichiometricconditions. Combustion chamber design changes may alsoreduce peak temperatures, thus limiting thermal NOx forma-tion. The design techniques for this "dry low NOx" (DLN)combustion technology include staged combustion and/or useof a lean pre-mix combustion configuration. Specific exam-ples are provided below.

Low NOx Modification

For the main generators, Wartsila has developed a retrofitpackage called a Low NOx Modification. This modificationis based on a higher combustion air temperature at initiationof the injection cycle, which drastically reduces the ignitiondelay. The retrofit also retards the thel injection start and hasa shorter injection period that makes combustion take placeat the optimal point with respect to efficiency. It improvesfuel atomization, and modifies combustion space for im-proved mixing of air and fuel. The design requires replace-ment of the piston crowns, piston ring set, fuel injectionvalve, cylinder head, cylinder liner, and antipolishing ring.The Low NOx modification is expected to reduce NOxemissions approximately 30% from the Wartsila engines.The low NOx modification incorporates fuel injection timingretard as described below.

Fuel Injection Timing Retard

Fuel Injection Timing Retard (FITR) reduces NOx emissionsin reciprocating engines by delaying the injection of fuel inthe engine from when the chamber is at its smallest, to a timewhen the compression chamber is expanding. The larger

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volume in the compression chamber produces a lower peakflame temperature, thus reducing thermal NOx formation.

FITR reduces the fuel efficiency of engines leading to apotential increase in SO2 emissions. The extent of FITR isalso limited because excessive injection delay can cause theengine to misfire. Emission reductions can range between20% to 30% depending on the degree of FITR implemented.

Lean Pre-mix

Lean pre-mixed combustion technology can be used forheaters, boilers, and turbines. The air and fuel are pre-mixedbefore introduction into the combustion zone. This results in

a mixture with a very lean and uniform air-to-fuel ratio. Thelean fuel-to-air ratio results in lowered average combustiontemperatures, reducing the formation of thermal NOx. Thehomogeneous mixture prevents formation of localized fuel-rich pockets within the combustion zone, which furtherreduces peak temperatures and lowers thermal NOx forma-tion. To stabilize the flame and to assure complete combus-tion with minimum carbon monoxide emissions, a pilot flamemay be incorporated in the combustor or burner design.

Lean pre-mixed combustors are not an effective controltechnique at reduced load conditions, because as the fuelrequirement is decreased, the air and fuel mixture becomestoo lean for proper combustion. To avoid these conditions,manufacturers' lean pre-mixed combustors switch to aconventional combustion mode at reduced-load conditions,which result in higher NOx emissions.

Staged Fuel

Staged fuel burner technology for heaters, boilers, andturbines, consists of two combustion zones. In the primaryzone, a portion of the fuel is introduced to the combustionchamber with a fraction of the fuel characterized as a fuel-lean burn. The excess combustion air acts as a heat sink andresults in sub-stoichiometric combustion conditions. The

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remainder of the fuel is injected in the secondary zone andcombusted. The technology reduces thermal NOx.

Overfire Air

Off-stoichiometric combustion, for heaters and boilers,includes the following control technologies: using of secon-dary air, burners-out-of-service, and biased burner firing.

The Overfire Air (OFA) technique generally is not availablefor boilers with capacities less than 25 MMBtu/hr. OFA isapplicable only to boilers with special burner design.

Regarding the NOx removal efficiency of OFA, performancetest data reported by EPA for three small gas-fired boilers,ranging in size from 22 to 56 MMBtu/hr, showed thatcontrolled levels in the range of 0.073 to 0.142 lb/MMBtuwere achieved, with emission reductions of 13% to 73%reported. Data for a 22 MMBtu/hr boiler burning distillateoil showed that emissions were reduced from an uncontrolledlevel of 0.154 lb/MMBtu to a controlled level of 0.125

lb/MMBtu, an emission reduction of 19 percent.

Flue Gas Recirculation (FGR)

Flue gas or exhaust gas recircuiation is a proven controlstrategy for boilers and heaters. The basic principal of fluegas recirculation (FGR) is to replace a portion of the incom-ing combustion air with exhaust gas. FGR reduces NOxformation by reducing available oxygen content and byacting as a heat sink to lower peak:combustion temperatures.At full-load, this results in a richer burn with more exhaustgas to absorb the heat of combustion, resulting in a lowercombustion temperature. NOx removal of up to 40% isachievable by using a maximum recirculation of 30% exhaustgas. FGR with LNB can reduce NOx emissions up to 71%.FGR systems are commercially available, and are thereforetechnically feasible.

Recently, a new class of ultra-low NOx burners has beendeveloped, which use a combination of techniques. The

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burners are designed to recirculate hot oxygen-depleted gasesinto the combustion zone, thereby maintaining optimumflame temperature, yet reducing NOx by excess air controls.

Staged Combustion Air (SCA)

Another low NOx technology for boilers and heaters is arich/quench/lean staged combustion design. Air and fuel areinjected directly in the combustion zone to mix and combustsimultaneously. The off-stoichiometric or staged combustionair method separates the combustion process into two stages:primary and secondary combustion. Primary combustion isthe first stage of combustion conducted in a fuel-rich com-bustion zone. Combustion is then completed at lowertemperatures in a secondary, fuel-lean zone.

The fuel-rich first stage inhibits the formation of thermalNOx due to low oxygen levels. Second stage combustiontemperatures are below NOx formation temperatures due tothe injection of excess air. This design controls both thermaland fuel NOx. Low NOx burners (LNB) achieve reductionsin NOx emissions by using multiple combustion stages withvarying fuel-air ratios to reduce combustion temperatures andthermal NOx formation.

Good Combustion Practice

Good combustion practice is applicable for all combustionsources. This method requires operating and maintaining theequipment according to the manufacturer's recommenda-tions, operator experience, and good arctic engineeringpractices to obtain maximum fuel efficiency and minimumemissions.

4.1.3 NOx Control for Wartsila Generator Five andSeventeen (MG-5, MG-17)

Cominco plans to operate seven 5000 kW Wartsila generatorsets (MG-1 through MG-6, and MG-17). Two of these units(MG-5 and MG-17) are subject to BACT review. Wartsilaengines MG-1 through MG-5 are existing 5000 kW units that

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the Department permitted under PSD in 1988 with opera-tional restrictions. Two of the five units were to operate instandby status. Cominco's application and permit did notidentify the standby units. Therefore, the Department hasinterpreted that at least two of the five units must be instandby at any given time in order to comport with the 1988permit decision.

In 1994, the Department issued a PSD permit to removestandby status from one of the existing units (unit MG-2).An operational cap of 109,660,000 kW-hr per year wasimposed on the remaining four units--MG-1, MG-3, MG-4,and MG-5, which was equivalent to full-time operation ofthree units, with one unit on standby. Under the kW-hroperational cap, all four engines could operate simultane-ously provided the annual kW-hr limit was not exceeded.Cominco also added a sixth 5000 kW Wartsila engine tooperate full time as part of the 1994 permit.

Cominco is currently requesting the removal of the annualkW-hr operational restriction. Cominco has requested thatMG-5 represent the standby unit for the purpose of BACTanalysis. Therefore, MG-5 must undergo a BACT analysisas a modified source. Cominco is proposing to add a seventh5000 kW Wartsila engine which, therefore, must undergoBACT analysis as a new emission source.

The control technologies Cominco evaluated as possibleBACT technologies for MG-5 and MG-17 are Direct WaterInjection (DWI)/Low NOx Modification, Fuel InjectionTiming Retard (FITR), Low NOx Modification, SelectiveCatalytic Reduction (SCR), and Non-Selective CatalyticReduction (NSCR). Because NSCR requires low oxygencontent in the exhaust gas stream, it was the only controltechnology considered unavailable for diesel units due totechnical constraints. Of the remaining technologies, Selec-tive Catalytic Reduction with an estimated reduction of 90%is the most stringent. Top Down BACT analysis requires theconsideration of the most stringent control technologies first.

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If the most stringent control technology is considered BACT,then no analysis of less stringent controls is required.

Selective Catalytic Reduction

Selective Catalytic Reduction (SCR) is the most stringentcontrol technology available for large diesel-fired generators.Top-Down BACT requires the Department to consider themost stringent technology before looking into less effectivecontrol technologies. The results of the Department's Tech-nical and Economic analysis are presented below. TheDepartment based the analysis on information provided byCominco, SCR vendors, and SCR operators.

Technical Feasibility

SCR is a technically-feasible control technology for dieselinternal combustion engines. The Department believes that,although SCR has not been implemented in Alaska, it is atechnically-feasible technology for Alaska. SCR manufac-turers, including Siemans are willing to offer SCR packagesfor diesel engines with warranties of up to 90% NOx reduc-tion. For many years, the Department eliminated SCR asBACT, partly due to the safety concerns regarding the useand transportation of anhydrous ammonia to rural areas.However, recent innovations in SCR technology primarilyalleviate the safety concerns regarding ammonia use.

Ammonia can now be generated safely from urea on demand.Without urea-based ammonia generation, Cominco wouldhave to store large quantities of anhydrous aqueous ammoniaon-site (185,000 gallons at the port, 7,125 gallons at themine) due to the mine's remote: location and short shippingseason. With the storage of large quantities of ammonia,Cominco expressed concerns regarding the difficulty ofevacuating mine personnel. However, with ammonia gener-ated from urea, no ammonia storage is required at the port,and the mine-site ammonia requirement is reduced to one2,000-gallon day tank and one 750-gallon mixing tank.Release of this small amount of aqueous ammonia at the

81

mine-site is unlikely to require evacuation of the entirefacility. Urea-based ammonia generated on demand elimi-nates the ammonia safety concerns at the port and greatlyreduces the risk at the mine-site.

Residual ammonia in exhaust does react with sulfuric andhydrochloric acid to produce ammonium salts. These saltscan potentially be generated at explosive levels in the exhaustgas. However, current catalysts and sophisticated ammoniacontrol systems effectively eliminate this risk. A more validconcern is ammonia slip where the SCR unit releases ammo-nia into the atmosphere due to the incomplete reaction ofinjected ammonia. Ammonia slip should be minimized usingthe vendor's proposed control systems. Cominco's vendor,Siemans, guarantees ammonia slip of less than 10 ppm at15% 02 in the exhaust gas. The OSHA Permissible Expo-sure Limit is 50 ppm (TWA), the ACGIH Threshold LimitValue is 25 ppm (TWA), and 35 ppm (STEL). The expected10 ppm of ammonia slip will diffuse to significantly lowerconcentrations before the exhaust plume reaches theground. Ammonia slip while not an immediate healthconcern, does introduce a new pollutant into the atmosphere.However, during the course of a year, operating two 5 MWengines full-time with SCR controls would result in ap-proximately 5 tons of ammonia slip while removing over1400 tons of NOx, when compared with uncontrolled NOxemission rates.

Economic Feasibility

With technical and safety concerns addressed, the primaryissue is the economic viability of SCR at the mine's location.The Department asked for the economic analysis of SCRusing both aqueous ammonia and urea. Cominco providedfour cost scenarios for SCR. Each scenario included amorti-zation over 10 years, 5 years, and 3 years. The Departmentgenerally considers an amortization period of 10 years asappropriate for a BACT analysis. Cominco provided the 5-year and 3-year amortization periods because they believe

82

natural gas reserves may be developed near the mine and theengines retrofitted for gas use within this time frame.However, without a firm commitment from Cominco toswitch to natural gas, the Department selected an amortiza-tion period of 10 years. The scenarios provided by Comincoare discussed further below.

A crucial part of Cominco's economic analysis is considera-tion of the Waste Heat Recovery Unit (WHRU) that currentlyextracts waste heat from MG-5's exhaust gases. To installSCR, Cominco can either relocate the WHRU to anotherengine, or purchase a supplemental boiler to supply heat lostdue to eliminating the WHRU. One of the scenarios pro-vided by Cominco included both the costs of the supplemen-tal boiler and the WHRU relocation as an estimate of lostfuture waste-heat recovery capacity. We believe that includ-ing both costs is inappropriate. Additional waste heatrecovery needs are outside the scope of Cominco's produc-tion rate increase project as described in the current applica-tion.

Of the three remaining scenarios, two evaluate the costs foraqueous ammonia-based SCR in conjunction with relocatingthe WHRU and purchasing the supplemental boiler. Thethird scenario evaluates the cost of urea-based SCR inconjunction with purchasing the supplemental boiler.Cominco did not provide an economic evaluation of urea-based SCR with the WHRU relocated to another engine. Fora prior project in 1993 (Cominco, 1993), Cominco providedan economic analysis of urea-based SCR but, this analysisdoes not take into account the WHRU relocation scenario.ADEC reused Cominco's current analysis to estimate the costof urea-based SCR under the WHRU relocation scenario.The table below shows the cost per ton of pollutant removedfor the three scenarios Cominco provided, the 1993 Comincourea SCR cost estimate, and the ADEC estimation of urea-based SCR with the WHRU relocated.

V

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Table 4.1.3 - 1. Selective Catalytic ReductionCost Effectiveness

Origin Reagent Scenario Cost/tonNOx

Removed

Cominco aqueous Supplemental $5,6431998 ammonia Boiler

Cominco aqueous WHR.U relocated $3,7431999 ammonia

Cominco urea Supplemental $4,0721999 Boiler

Cominco urea not addressed $2,9021993

ADEC urea WHRU relocated $2,279

ADEC urea WHRU relocated $1,586

The $2,279/ton NOx removed cost is based directly on dataCominco provided, and uses the same assumptions. The$1,536/ton NOx removed cost is largely based on Cominco'sdata and assumptions. However, AJ3EC modified Cominco'smethods to account for a more precise estimate of remotelocation costs and, per EPA guidance, a reduced annual costof capital. Piping and electrical costs were lowered to reflectguidance from the EPA's OAQPS Control Cost Manual,EPA 450/3-90-066 (EPA 1990). ADEC lowered the cost ofwater pretreatment based on water use estimates provided byCominco's SCR vendor and conversations with the water-treatment-system vendor. The $1,586/ton cost also reflectsthe higher cost of using more urea, since it appears thatCominco underestimated the mass of urea required for SCR.The details of ADEC's analysis are found in Appendix A.

The $2,902/ton NOx removed was included in Cominco'sprior permit application of 1993, requesting the installationof the same make and model of engine. ADEC included the

84

1993 cost to provide a comparison with Comineo!_-,¢,urrentestimates and the Departments, estimates. ::'

ADEC considers all of the costs shown on the above;table to

be economically feasible. Additionally, the costs presentedare within the range considered feasible by the _S. Envi-ronmental Protection Agency (EPA) stated in theft January26, 1999 letter to ADEC (EPA 1999).

The technical reservations and safety issues concerning SCRare reduced by the use of modern catalysts and urea-basedreagent. Of the available control technologies, _ is themost stringent control, providing 90% reduction _NOx.The costs are well within what ADEC and EPAeonsiders

. ?-;:,

economically feasible. ._:

BACT decision for Wartsila Generator Five _$) andSeventeen (MG-17) __'_

Cominco differs with ADEC that SCR is tec_y- andeconomically-feasible. Cominco maintains thag:_:_R_, isunproven in an arctic environment, has safety i_associ-ated with ammonia use, is too expensive and, therefore,should not be considered as BACT. _8!

Because of this fundamental difference, Comin¢o _ pro-posed an alternative that provides a NOx reductiot_ilar toSCR and provides other advantages attracti_i,i_':-bothCominco and ADEC. Cominco proposed that __ila

Low NOx Modification package be BACT __ twoengines under consideration. Cominco also _ses toinstall Low NOx controls on the three uncontro_:..cp.gines(MG-1, 3, 4) and installing Low NOx controls ofi_:_e twoengines with FITR as controls (MG-2 and MG-6).:::Wartsilaestimates emission reductions of 30-35% from a _¢ntion-ally configured unit. Wartsila estimates an additi_i_lP/, to15% NOx reduction on the engines with FITR-__tlyinstalled. _-_:_"=

.>:,-::.'::

::;-::_'!-=-..i,:.

.? =.." :

85

Installing Low NOx on all seven engines has several advan-tages over installing SCR on two engines. The capital andoperating costs of Low NOx are lower than SCR. The tablebelow compares the capital costs, annualized costs, and thecost per ton of NOx removed for Low NOx and SCR.

Table 4.1.3 - 2 Cost of Controls fora Single 5000 kW Wartsila

Total Total Tons NOx CostInstalled Annualized Removed effec-Capital Costs (tons) tivenessCosts ($) (S/year) (S/year)

Low $370,738 $89,754 237.4 $378NOx

SCR $3,629,25V $1,128,885 712 $1_586

I [

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i Table 4.1.3 - 3 Large Diesel Engine! NOx Controls Comparison: Potential

NOxTons NOx Emissions

Operational Control Removed afterAssumption Technology (tons/yr) controls

(tons/yr)Low NOx

Operating (seven en-Scenario A gines) 1,662 3,878

SCR (twoengines)+

Seven engines FITR(two 1,741 3,799continuous engines)+operation +three engines

uncontrolled

Low NOx 1,425 3,324Operating (sevenScenario B engines)

SCR (two6 engines engines)+continuous FITR (two 1,0291 3,720operation, 1 engines)+engine on +three enginesstandby 1 uncontrolled

Potential emissions based on one SCR controlled engine onstandby status.

The use of Low NOx controls also eliminates the logisticalproblems (such as shipping urea to the site) associated withoperating SCR at the mine.

For full-time, 100% load operation, applying Low NOxcontrols to seven engines would result in 1,662 tons NOxremoved per year. Similarly, for fifll time, 100% load opera-tion, applying SCR to the two engines subject to BACT

,ql_pP"

87

would result in 1,741 tons NOx removed per year. Assumingfull-time, 100% load operation, there is less than a 5%difference in NO× removal between the SCR and Low NOxscenarios. The incremental cost of SCR controls to removethe additional 79 tons of NOx is $29,759 per ton of NOxremoved. The high incremental cost for SCR compared withCominco's proposal for Dry Low NOx controls on sevenengines is exorbitant.

If all the generators were run full-time the installation of LowNOx on all seven generators would result in 79 tons per yearmore NOx emissions than the installation of SCR on the twogenerators that require BACT. In a practical sense, all sevenengines will not be operating continuously or at full-load. Areasonable assumption is that under typical operating condi-tions one or more engines will not be running due to mainte-nance of standby-generation capacity. The higher operatingcost of SCR in comparison with an uncontrolled generatorprovides an economic incentive for Cominco to reduce theoperating time of the SCR unit. Following this reasoning,Cominco may choose one of the two units fitted with SCR asthe standby unit in order to reduce operating costs. If anSCR controlled unit is in standby throughout the year, thenthe SCR scenario could emit up to 396 more tons of NOx peryear than the Low NOx control scenario for all seven units.Installing Low NOx controls on all seven generators providesa greater consistency of control than installing SCR on justtwo engines. Therefore, this option could result in a greateremission reduction.

Cominco has proposed a proactive approach for a cost-effective NOx emission control strategy by installing LowNOx controls on five existing engines not subject to BACTreview for this project. Because Cominco's proposal:

• achieves a similar maximum NOx reduction as the moststringent controls;

• can potentially result in a greater NOx reduction; and

I

i

88

• is logistically and economically less onerous toCominco.

The Department finds Low NOx controls to be BACT ondiesel generators MG-5 and MG-17. A vendor guaranteedemission rate of 11 grams per kilowatt hour is representativeof the NOx reduction expected of the Low NOx controlsselected as BACT. Condition XI(A) requires units MG-5and MG-17 to meet an emission rate limit of 11 grams perkilowatt hour representative of BACT. Condition VI(B)requires source testing within 90 days upon start-up andevery 5 years to demonstrate compliance with the BACTrequirement. Condition XI(C) requires reporting the sourcetest results. Condition VI(A) requires the installation of LowNOx controls on units MG-1, MG-2, MG-3, MG-4, andMG-6.

89

ALASKA DEPARTMENT OF ENVIRONMENTALCONSERVATION

AIR QUALITY CONSTRUCTION PERMIT

Permit No. 9932-AC005 Date: Preliminary--May 4, 1999

The Department of Environmental Conservation, under theauthority of AS 46.03, AS 46.14, 6 AAC 50, 18 AAC 15, and18 AAC 50, issues this Air Quality Control ConstructionPermit to:

Owner and Operator: Cominco Alaska, IncorporatedP.O. Box 1230Kotzebue, AK 99752

Permittee: Cominco Alaska, Incorporated

Facility: Red Dog Mine

Location: 145 km north of Kotzebue,Alaska

UTM Coordinates Northing7551 km, Easting 590 km

Zone 3

This permit authorizes the Permittee to modify the Red DogMine Facility:

• operate a new diesel-fired generator,

• remove operating restrictions on four diesel-fired genera-tors,

° restore original operating restrictions on three other gen-erator sets,

• add a diesel generator set,

• add a new incinerator and remove an old incinerator,

• add 12 new heaters,

r!

90

• add an additional diesel storage tank,

• add a new crusher and baghouse,

• increase operating hours for the Assay Lab baghouse,

• increase fugitive emissions, and

• increase the holding capacity of the ore stockpile tosupport a production rate increase at the Red Dog miningfacility.

This permit revises conditions of Air Quality Control PermitNo. 9332-AA003 and expands the list of permitted equip-ment to include unlisted existing sources. This permit alsoauthorizes the Permittee to operate the sources referencedabove as provided by AS 46.14.120.

Jim Baumgartner, DateSupervisor, ConstructionPermits

Air Quality Maintenance Section

91

TABLE OF CONTENTS

I. PERMIT CONTINUITY ............................................ 1

II. STANDARD PERMIT CONDITIONS ..................... 1

III. RECORD KEEPING, REPORTING,AND TESTING CONDITIONS ................................ 2

IV. NOTIFICATION AND OPERATINGCONDITIONS ............................................................ 4

V. 18 AAC 50.010: AMBIENT AIRQUALITY STANDARDS ANDINCREMENTS .......................................................... 6

VI. OWNER REQUESTED LIMITS ............................... 8

VII. 18 AAC 50.040: FEDERAL STANDARDSADOPTED BY REFERENCE ................................. 10

VIII. 18 AAC 50.050: INCINEtL&TOREMISSION STANDARDS ...................................... t6

IX. 18 AAC 50.055: INDUSTRIAL PROC-

ESSES AND FUEL-BURNING EQUIP-MENT ....................................................................... 16

X. 18 AAC 50.110: AIR POLI,UTIONPROHIBITED .......................................................... 17

XI. 18 AAC 50.315(E)(3)(A): (BACT) ......................... 18

XII. 18 AAC 50.315(E)(3)(B): ASSOCIATEDGROWTH ................................................................ 19

EXHIBIT A .......................................................................... 20

EXHIBIT B .......................................................................... 24

EXHIBIT C .......................................................................... 26

EXHIBIT D .......................................................................... 27

EXHIBIT E ........................................................................... 28

EXHIBIT F ........................................................................... 29

r92 i

I. Permit Continuity t

A. Except as revised or rescinded herein, or as super--_ seded by an Air Quality Permit issued under AS

46.14.170, the Permittee shall comply with termsand conditions of Air Quality Control Permit toOperate No. 9331-AA003, as revised December4, 1996. If permit terms and conditions listed inthis permit conflict with those of Permit No.9331-AA003, the Permittee shall comply withterms and conditions listed herein.

B. Permit Condition 10 and kW-hour operating lim-its for units MG-1 and MG-3 through MG-5 listedin Exhibit A of Permit No. 9332-AA003 are re-scinded the effective date of this permit action.

IV. Notification and Operating Conditions

A. The Permittee is authorized to install and operateemission sources at the Red Dog Mine facility aslisted in Exhibit A.

B. Re-cam and rebuild each of Wartsila sourcesMG-1 and MG-3 through MG-5 with low emis-sion retrofit parts before installation of sourceMG-17. Rebuild each of Wartsila sources MG-2and MG-6 with low emission retrofit parts beforeinstallation of MG- 17.

1. Adjust the fuel injection timing of each rebuiltunit to comply with emission limits set out inCondition VI(A)(4).

2. For each unit, provide a notice within 30 daysafter each unit has been rebuilt and adjusted todocument the date rebuild was completed, ini-tial engine start-up after rebuild, degree offuel-inj ection timing retard adjustment, and at-

93

tach a copy of the vendor service representa-tive's trip report.

3. No less than once each calendar year, checkand attach to the Facility Operating Report re-quired by Condition 26 of Permit No.9332-AA003, written verification of thefuel-injection timing retard setting for eachengine. List the date of inspection, the servicerepresentative's name and credentials, and acopy of the representative's trip report.

VI. Owner Requested Limits

A. Limit:

1. Effective the issue date of this permit untileach unit has been rebuilt using low emissionretrofit parts, electric power production ofeach Wartsila Generator set MG-1 and M-3

through MG-5 should be no greater than27,415,000 kW-hr per unit during any con-secutive twelve-month period;

2. Carbon monoxide emissions from each Wart-

sila generation set, sources MG-1 throughMG-6 and MG-17 to no greater than 8.0lb/hour;

3. Particulate matter emissions from each Wart-

sila generation set, sources MG-1 throughMG-6 and MG-17 to no greater than 2.6lb/hour;

4. Oxides of nitrogen emissions from each Wart-sila generation set sources MG-1 and MG-3through MG-5 after engine re-cam and instal-lation of low emission retrofit parts to nogreater than 121.6 lb/hour and 11 gram per

r:i 94

kilowatt-hour, expressed as NO2. Oxides ofnitrogen emissions from sources MG-2 andMG-6 after installation of low emission retro-

fit parts to no greater than 121.6 lb/hour and

11 gram per kilowatt-hour, expressed as NO2;

Xl. 18 AAC 50.315 (e) (3) (A): (BACT)

Install emission or operational controls as BACT :forthe following equipment:

A. Limits

1. Oxides of Nitrogen (NOx) BACT

a) Install and operate as BACT for the fol-lowing fuel burning equipment at the RedDog Mine/Mill Complex:

(1) Wartsila Generator Set Units MG-5and MG-17 with low emission en-gine configuration;

b) Comply with. the following NOx emis-sion limits. F!missions from:

(1) MG-5 and MG-17 shall not exceed11 gram/kw-hour and 121.3 lb/hour,expressed as NO2.

B. Monitoring and Record keeping

1. NOx

a) For Units MG-5 and MG-17, maintain re-cords of engine, configuration changes and

"1 ..... i

95

fuel injection timing retard settings as setout in Condition IV(B).

c) For Units MG-5 and MG-17, conduct pe-riodic NOx emission source tests as set outin Condition III(D) and VI(B)(2).

C. Reporting

1. NOx

a) Report rebuild and fuel injection timingrequirements of MG-5 and MG-17 as setout in Condition IV(B)(2) and (3).

b) Report results of emission performancetests of Units MG-5, MG-17, and MH-1through MH-3 as set out in ConditionIH(C).

i rWl 96

UNITED STATESENVIRONMENTAL PROTECTION AGENCY

, REGION I01200 Sixth Avenue

, Seattle, WA 98101

JUL 29 1999

Reply ToAttn Of: OAQ-107

Mr. Tom ChappleAlaska Department of Environmental Conservation410 Willoughby Avenue, Suite 105Juneau, Alaska 99801-1795

Re: Cominco Alaska Inc. PSD Permit Issuance

Dear Mr. Chapple:

I enjoyed our telephone conversation on Tuesday, July 27,1999, regarding Cominco's Red Dog Mine PSD Permit. It isalways good to hear a cooperative response when we havecomplex issues at hand. As promised during the call, I amincluding in this letter EPA's concerns about the proposedpermit.

As we discussed, EPA has two major concerns with theproposed permit:

1. A_DEC appears to agree that GM-5 and GM-17 aresubject to PSD and must employ Best Available ControlTechnology (BACT). Although ADEC states in its analy-sis that selective catalytic reduction (SCR), the most strin-gent level of control, is economically and technologicallyfeasible, ADEC did not propose to require SCR. Instead,ADEC concluded that installation of low NOx burners on

all seven generators and fuel injection timing retard (FITR)

97

on some of the generators constituted BACT. EPA dis-agrees with this conclusion and believes that SCR is BACTfor GM-5 and GM-17. As we discussed, once it is deter-mined that an emission unit is subject to BACT, the PSDprogram does not allow the imposition of a limit that is lessstringent than BACT even if equivalent emission reduc-tions are obtained by imposing new controls on other emis-sion units.

2. In its PSD analysis, ADEC failed to consider whetherGM-1 and GM-3 through 5 are also subject to PSD andthus to BACT. Based on the existing information, EPAbelieves these emission units are subject to PSD becausethey are part of the overall project to increase the capacityof the facility through the removal of the existing restric-

J tion on operation of these units (the kilowatt per year re-striction).

The National Park Service also raised these issues during thepublic comment period on the proposed permit.

I am pleased that ADEC is continuing to review informa-tion on past PSD permitting actions for the Cominco facility.I also appreciate your commitment to discuss your conclu-sions with my staff before issuing the permit, which youexpect to occur in the next week to ten days. I am confidentthat we will be able to conclude this project by issuance of asolid PSD permit.

Once you have completed your reconsideration of the PSDissues for the diesel generators, please have your staff contactDoug Hardesty at EPA at (206) 553-6441 to discuss yourintended response to EPA's concerns. Please also feel free tocall me at (206) 553-2963 ifI can be of any further assistancein this matter.

_ _ _ -r

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